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nnmS volume is published by authority of the Exe- 
-*- cutive Board of the Graduate School of the Univer- 
sity of Michigan. A list of other volumes thus far 
published or arranged is given at the end of this volume. 



THE SENATE AND TREATIES 
1789-1817 



THE MACMILLAN COMPANY 

NEW YORK BOSTON CHICAGO < 

ATLANTA SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON BOMBAY CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



THE SENATE 
AND TREATIES 

1789-1817 

THE DEVELOPMENT OF THE TREATY- 
MAKING FUNCTIONS OF THE 
UNITED STATES SENATE 
DURING THEIR FORM- 
ATIVE PERIOD 



BY 

RALSTON HAYDEN, Ph.D. 

n 
ASSISTANT PROFESSOR OF POLITICAL SCIENCE 
UNIVERSITY OF MICHIGAN 



THE MACMILLAN COMPANY 

London: Macmillan & Company, Limited 

1920 

All rights reserved 



i'^h 







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•^ 



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d^ 



Copyright, 1920 
By THE UNIVERSITY OF MICHIGAN 



.'/'^^v^-. 






THE'PLIMPTON • PRESS 
NORWOOD'MASS'U" 8'A 



TO 
MY MOTHER AND FATHER 



PREFACE 

This book is a study in detail of the treaty- 
making powers of the United States Senate during 
the formative period of their history. This period 
is conceived to extend from 1789 to just a Uttle 
beyond the first twenty-five years of government 
under the Constitution. No powers of the federal 
government underwent a more interesting develop- 
ment during this first quarter-century than did 
those which have to do with the making of treaties. 
There are good reasons for this. The treaty clause 
of the Constitution is so flexible that the exact re- 
lations of the Senate and the executive in treaty- 
making could be worked out only in actual practice. 
And there never has been a period in the history of 
this nation when foreign relations — threats of war, 
avoidances of armed conflicts, diplomatic defeats 
and victories, treaties made and denounced — have 
played so vital a part in the affairs of the govern- 
ment and in the lives of the people. The young 
republic was fixing her status in the family of nations 
— finding her level among a jostling throng who 
regarded her with indifferent, hostile, or designing 
eyes. Consequently that part of her constitutional 
organization which concerned treaty-making, and 
foreign relations generally, was rapidly developed 
by constant appUcation to the problems of actual 
government. 



X PREFACE 

After the War of 1812 the United States turned 
her thoughts and her energies more largely into 
domestic channels. Her treaty-making power was 
exercised in a new spirit after 1815. But if the 
spirit of American diplomacy has changed with the 
generations since Monroe entered the White House, 
the manner in which this country has made the in- 
ternational agreements which are also her national 
laws has been altered but little. This is particularly 
true of the manner in which the Senate has per- 
formed its part in the making of treaties. The 
Senate is a conservative body. Its procedure in 
dealing with treaties and its relations with the ex- 
ecutive in the performance of their joint functions 
are to-day very much as they were a century ago, 
although quite different from what they were ex- 
pected to be in 1789. It is for these reasons that 
the first twenty-five years under the Constitution 
have been said to be the formative period in the 
history of the treaty-making functions of the 
Senate. 

In the events of these years the writer has at- 
tempted to discover the conception of the place of 
the Senate in treaty-making then held by the 
various departments of the government, to trace 
the development of the procedure of the Senate in 
the transaction of treaty business, to ascertain the 
relations between the Senate and the executive in 
this field, and to investigate the effect of the posi- 
tion of the Senate in our constitutional system upon 
the relations between the United States and other 
nations. The study has been carried to the year 
1817 for the purpose of examining the early exercise 



PREFACE XI 

of the treaty functions after they had reached their 
normal development. 

The writer makes grateful acknowledgment of 
his obligations to Professor Jesse S. Reeves, under 
whose direction the work was undertaken and com- 
pleted, to Professor Ulrich B. Phillips for carefully 
reading the text, and to his wife for valuable lit- 
erary assistance. He is also indebted to The 
American Journal of International Law for permission 
to reprint as Chapter VIII an article which first 
appeared in that magazine. 

Ralston Hayden 

Ann Akbor, Michigan 
October, 1919 



TABLE OF CONTENTS 

CHAPTER I 

PAGE 

The First Exercise of the Treaty-making Power 1 

Introduction to study of early period — French Consular 
Convention, 1788 — History of negotiation — Advice and 
consent to ratification — Personal relations between execu- 
tive and Senate — Senate action based upon general prin- 
ciple that obhgation exists to ratify treaty signed by 
authorized agent, and on promises of Congress to ratify 
this convention — Jay's opinion — Relation between partici- 
pation of Senate in negotiation and its obligation to advise 
and consent to ratification — Bearing on international 
relations of the United States. 

CHAPTER II 

Development of Treaty-making Power through Action 
ON Treaties with Indian Tribes, 1789-1795 11 

Problems of procedure solved by action on Indian treaties — 
Treaties of Fort Harmar — Decided that advice and con- 
sent of the Senate should be formally given to such pacts — 
Senate refuses to act upon one of them — Personal nature 
of relations between executive and Senate — Discussion of 
the constitutional part assigned to the Senate in the negotia- 
tion of treaties — Provision made for personal meetings with 
the President — Conference on negotiation of treaty with 
Creek Indians proves personal consultation to be imprac- 
ticable — Subsequent action on Creek treaty — In treaty 
with Cherokees Senate advice received in advance, but not 
in personal consultation — Senate promises to ratify treaty 
concluded in accordance with instructions which it has 
approved — Ratification — Rejection of General Putnam's 
treaty of 1793 — Other treaties with Indian tribes during 
Washington's administrations — Changes in procedure — 
Senate approval of additional articles. 



' CONTENTS 

CHAPTER III 

PAGE 

E Treaties with Algiers and Spain, 1790-1796 ... 40 
mplicated problem presented by commerce in Mediter- 
anean — Senate adopts committee report advising ransom 
)f Algerine captives and confirmation of treaty with Morocco 
— President requests appropriation in advance — Senate 
advises suspension of negotiation for ransom of captives — 
Significance of this action — In next session Senate advises 
ransom of captives and negotiation of treaty with Algiers — 
Struggle with President, who desires appropriation in ad- 
vance — Victory of Washington — Negotiation and rati- 
fication of treaty — Treaty of San Lorenzo el Real — In con- 
firming appointment of negotiators the Senate agrees to 
consent to ratification of treaty negotiated by them — 
Senate consents to extension of their powers — Ratification 
of treaty. 

CHAPTER IV 

HE Jay Treaty 58 

arly relations of the President and the Senate upon the 
subject of Anglo-American affairs — Washington asks and 
receives advice in 1 790 — Results of mission of Gouverneur 
Morris laid before the House and the Senate — Drifting 
towards war — Peace mission planned by Hamilton and 
small group of Federahst Senators — Part played by group 
in securing consent of Washington in the selection of the 
envoy, in securing his acceptance by the Senate, and in 
drawing his instructions — Senate declines to ask for in- 
structions when nomination is confirmed — Struggle for 
ratification of the treaty — Amended by its friends — It is 
decided that resubmission of amended treaty is not neces- 
sary — England makes no objection to conditional ratifica- 
tion — Senate fails to preserve secrecy on treaty — Accept- 
ance of Jay treaty by Senate tends to confirm President in 
practice of not consulting Senate in advance as to details 
of proposed treaties — Summary. 

CHAPTER V 

The Creek Treaty of 1796 95 

The Creeks, the State of Georgia, and the United States — 
General nature of proposed treaty laid before Senate when 



CONTENTS XV 

PAGE 



commissioners are nominated — Georgia objects to treaty 
and appeals to Senate — Senate amends treaty — Inter- 
pretation of French treaty of 1778 — Execution of treaty 
with Algiers — Summary of exercise of treaty-making power 
during Washington's administrations. 



CHAPTER VI 

Treaties of the Administration op John Adams 107 

Procedure on Tripolitan treaty of 1796, and the supplementary 
article to the Jay treaty — Senate amendments to the com- 
mercial treaty of 1797 with Tunis — Prussian treaty of 1799 
indicates possibility of Senate control through powers of ap- 
pointment — The Senate amendments to treaty of 1800 
with France an example of influence of Senate in foreign 
affairs, and of its participation in negotiation — Formulation 
of Senate rules of procedure on treaties. 

CHAPTER VII 

The Senate and the Treaties op Thomas Jefferson ... 130 
Claims convention of 1802 with Spain — Vacillation of Senate 
— Final acceptance, and result of delay — Senate resents in- 
terference of American lawyers — The Louisiana Purchase — 
President given a free hand in negotiation — Cabinet ad- 
vises Jefferson not to lay treaty before Senate and House at 
same time — Prompt advice to ratify given by Senate — 
Attempt to advise further negotiation — ■ The King-Hawkes- 
bury Convention — Senate rejects Article 5 — England 
declines to accept principle that the United States may 
ratify with amendments — John Quincy Adams and the 
treaty of 1805 with TripoU. 

CHAPTER VIII 

The Genesis of the Senate Committee on Foreign 

Relations 169 

Committee grew out of legislative, not executive, functions of 
Senate during period of stress — Committees on foreign 
relations during administrations of "Washington — No regu- 
lar procedure on subject, and no standing committee — 



XVI CONTENTS 

PAGE 

Little progress during Adams's administration — Natural 
tendency in direction of system later evolved — From 1807 
on, more rapid development through custom of referring 
various parts of annual message to select committees which, 
in fact, sat throughout session and to which were referred 
most matters within their respective fields — "Committee 
on Foreign Relations" — Specialization of functions — In 
1816 becomes the first standing committee of the United 
States Senate. 

CHAPTER IX 

The Tbeaty-making Powers of the Senate at the End 
OF THE Formative Period, 1815-1817 196 

Procedure on Treaty of Ghent, commercial convention of 
1815 with Great Britain, and treaty of peace with Algiers — 
In its main outUnes procedure of Senate on treaties fixed — 
Principle that ordinarily Senate shall not, on its own initi- 
ative, advise the President to negotiate in accordance with 
detailed plan — Action in 1806 and in 1815 — Acceptance 
by foreign states of treaties amended by the Senate — Negoti- 
ations which secured acquiescence of Sweden to Senate 
amendments to treaty of 1816 with Sweden and Norway. 

Bibliography 217 

Index 227 



THE 
SENATE AND TREATIES 

CHAPTER I 

The First Exercise of the Treaty-making 
Power 

On the twenty-fifth of May, 1789, while the 
Senate of the first Congress under the Constitution 
was engaged in debating the impost bill, a message 
was announced from the President of the United 
States to be delivered by General Knox. The dis- 
tinguished messenger advanced, laid a bulky pack- 
age of papers on the table before John Adams, the 
President of the Senate, and withdrew. The mes- 
sage transmitted to the upper house of the national 
legislature for its constitutional action two treaties 
with Indian tribes which had been negotiated and 
signed under the authority of the Continental 
Congress, together with sundry papers respecting 
them. It was ordered that the message of the 
President, with the accompanying papers, lie on 
the table for consideration, and the Senate returned 
to the debate in which it had been engaged:^ Thus 

^ Journal of the Executive Proceedings of the Senate of the United 
States of America. From the Commencement of the First to the Ter- 
mination of the Nineteenth Congress (Washington, 1828), I. 3. Cited 
below as Sen. Exec. Jour. 

The Journal of William Maclay, United States Senator from 
Pennsylvania, 1789-1791, p. 49 (ed. 1890). 

1 



Z THE SENATE AND TKEATIES 

for the first tinie the Senate was faced with the ex- 
ecutive duties laid upon it by the treaty clause of 
the Constitution. This clause declares, "He [the 
President]] shall have power, by and with the advice 
and consent of the Senate, to make treaties, provided 
two-thirds of the Senators present concur; . . ." 
In these few words one of the most important powers 
of government is vested in the chief executive and 
the upper house of the Congress' of the United 
States.^ This bare grant told Washington and the 
members of the first Senate, as it tells us, merely 
that they were the joint possessors of this great 
power. With that elasticity in details which calls 
forth the admiration of the most discerning critic 
of our commonwealth, the Constitution left to suc- 
cessive Senates and to successive Presidents the 
problem and the privilege of determining under 
the stress of actual government the precise manner 
in which they were to make the treaties of the nation. 
At no subsequent period was more done to fix the 
relative powers of the President and the Senate in 
treaty-making, and to determine when and how the 
Senate should exercise its functions in this field 
than during the administrations of President Wash- 
ington; the precedents which were then set, either 
on the basis of first-hand knowledge of the intention 

1 Burr, The Treaty-Making Power of the United States and the 
Methods of Its Enforcement as Affecting jthe Police Powers of the 
States, gives a clear account of the evolution of the treaty clauses of 
the Constitution in the Federal Convention. See also Moore, Inter- 
national Law Digest, V., xviii, for a discussion of the treaty power, 
the negotiation and conclusion of treaties, their ratification, agree- 
ments not submitted to the Senate, and the enforcement, inter- 
pretation, and termination of treaties. 



TREATY-MAKING POWER 6 

of the framers of the Constitution, or through the 
necessities of the moment, have governed, in large 
part, the manner in which these functions have been 
performed ever since. 

Certainly if any body of men ever have been quali- 
fied by experience to complete harmoniously in 
working detail the general plan of the constitutional 
convention of 1787, those men were the early 
Senators, the members of the early cabinets, and 
the first President. We have only to recall the 
personnel of these early governments to realize the 
extent to which this is true. Of the sixty-six men 
who served in the Senate during Washington's ad- 
ministrations, thirty-one had been members of the 
Continental Congress or of the Congress of the Con- 
federation, twelve had helped draft the Constitution 
in the convention at Philadelphia, and ten had been 
members of state conventions which had ratified 
the federal instrument. Many had been active in 
organizing the rebellion and had served with dis- 
tinction in the revolutionary forces and in the legis- 
latures and constitutional conventions of their own 
states. Together with the members of the executive 
branch of the government they formed a body of 
men trained in politics and statesmanship, and emi- 
nently qualified to apply the newly made Consti- 
tution, not only wisely, but in the spirit of the great 
convention which had framed it, and of the state 
assemblies whose action had made it the supreme 
law of the land. 



4 THE SENATE AND TKEATIES 

THE CONSULAR CONVENTION WITH FRANCE, 1788 

Although the two pacts signed with Indian tribes 
at Fort Harmar and submitted to the Senate on 
May 2, 1789, were the first treaties to be laid be- 
fore that body, it was to the ratification of a con- 
sular convention with France that the Senate first 
gave its advice and consent. This convention was 
a heritage from the government under the Con- 
federation. Its previous history is succinctly told 
by J. C. B. Davis, as follows: 

On the 25th of January, 1782, the Continental Congress 
passed an act authorizing and directing Dr. Franklin to 
conclude a Consular Convention with France on the 
basis of a scheme which was submitted to that body. 
Dr. Franklin concluded a very different convention, 
which Jay, the Secretary for Foreign Affairs, and Congress 
did not approve. Franklin having returned to America, 
the negotiations then fell upon Jefferson, who concluded 
the Convention of 1788.^ 

On June 11, 1789, Washington laid this conven- 
tion before the Senate.- One of the striking aspects 
of the subsequent proceedings is the close relation- 
ship which was set up between the Senate and John 
Jay, who still filled the office of Secretary of Foreign 
Affairs, which had been held over from the govern- 
ment under the Confederation. The message sub- 
mitting the convention, after briefly mentioning the 

1 Davis, " Notes Upon the Foreign Treaties of the United States," 
in Treaties and Conventions Concluded Between the United States 
of America and Other Powers since July 4, 1776, pp. 1217-1406. 
See pp. 1293-1295. Davis here gives a brief account of the negoti- 
ation of the treaty and the action of the Senate upon it. 
2 Sen. Exec. Jour., I. 5. 



TREATY-MAKING POWER O 

purposes of the treaty and some of the cu-cumstances 
of its negotiation concluded: 

I now lay before you the original, by the hands of 
Mr. Jay, for your consideration and advice. The papers 
relative to this negotiation are in his custody, and he 
has my orders to communicate to you whatever official 
papers and information on the subject he may possess 
and you may require. 

When received, the President's message was 
simply read and ordered to lie for consideration.^ 
The Senate evidently desired to proceed in this new 
business with the care and caution commensurate 
with its importance, for on the following day the 
message was again read before an order was adopted, 
"That Mr. Jay furnish the Senate with an accurate 
translation of the Consular Convention between His 
Most Christian Majesty and the United States, and 
a copy thereof for each member of the Senate." ^ 
On the seventeenth the Senate sought further to 
assure itself of the accuracy of this translation by 
adopting an order that Jay examine it and report his 
opinion of its fidelity. It also sought further infor- 
mation by asking the Secretary to lay before it all 
the papers in his custody relative to the negotiation, 
and whatever official papers and information on the 
subject he might possess.^ Four days later Jay was 
requested "to attend the Senate to-morrow, at 12 
o'clock, and to bring with him such papers as are 
requisite to give full information, relative" to the 
convention. Accordingly on the twenty-second the 
Secretary "made the necessary explanations," after 

1 Sen. Exec. Jour., I. 5. ^ gg^. Exec. Jour., I. 6. ' Ibid. 



6 THE SENATE AND TREATIES 

which he was asked to give his opinion as to how far 
he conceived the faith of the United States to be en- 
gaged to ratify the convention in its existing ''sense 
or form." On the following Monday, this opinion 
was presented in writing. Jay considered in detail 
the circumstances in which the treaty had been 
negotiated, and ended with the conclusion that it 
should be ratified by the United States. Two days 
later the Senate unanimously consented to the con- 
vention and advised the President to ratify it.^ 

This direct and personal intercourse between the 
executive and the Senate is an indication of the 
feeling which seems to have been prevalent that 
the latter really was a council of advice upon treaties 
and appointments — a council which expected to 
discuss these matters directly with the other branch 
of the government. There is much evidence to 
support this view and also the conclusion that 
the practice of personal consultation failed to be- 
come firmly established largely because it proved 
to be an inconvenient and impracticable method of 
transacting business. For its knowledge of treaties 
the Senate came to depend, even during Washington's 
administrations, upon documents submitted rather 
than upon verbal reports. In the consideration of 
the French consular convention both means were 
used. 

A second point of interest offered by this con- 
vention is to be found in the motives which led the 
Senate to advise and consent to its ratification. 
On July 22, after Jay had personally explained the 

' Sen. Exec. Jour., I. 7, 8, 9; see Moore, International Law Di- 
gest, V. 587, for brief statement. 



TREATY-MAKING POWER / 

status of the convention, the Senate formally pro- 
posed this question to him: 

Whereas a convention referred this day to the Senate, 
bears reference to a convention pending between the most 
Christian King and the United States, previous to the 
adoption of our present Constitution — 

Resolved, That the Secretary of Foreign Affairs, under 
the former Congress, be requested to peruse the said 
Convention, and to give his opinion how far he conceives 
the faith of the United States to be engaged, either by 
former agreed stipulations, or negotiations entered into 
by our Minister at the Court of Versailles, to ratify, in 
its present sense or form, the Convention now referred to 
the Senate.^ 

In the written reply which he handed to the 
Senate five days later Jay recommended ratifica- 
tion. This recommendation seems to have been 
based upon two grounds: first, the general prin- 
ciple that a government was bound to ratify a 
treaty concluded by its minister acting in accordance 
with his instructions; second, that the Continental 
Congress had specifically promised to ratify this 
particular convention under certain conditions, 
which conditions had been met by France. 

The report states that in the opinion of the 
Secretary: 

There exist, in the convention of 1788, no variations 
from the original scheme sent to Dr. Franklin in 1782, 
nor from the convention of 1784, but such as render it 
less ineligible than either of the other two. 

That, although he apprehends that this convention will 

prove more inconvenient than beneficial to the United 

States, yet he thinks that the circumstances under which it 

was formed render its being ratified by them indispensable. 

^ Sen. Exec. Jour., 1. 7. 



8 THE SENATE AND TREATIES 

The circumstances alluded to, are these: 

The original scheme of 1782, however exceptionable, 
was framed and agreed to by Congress. 

The convention of 1784 was modeled by that scheme, 
but in certain instances deviated from it; but both of 
them were to be perpetual in their duration. 

On account of these deviations, Congress refused to 
ratify it, but promised to ratify one corresponding with 
the scheme, provided its duration was limited to eight 
or ten years; but they afterwards extended it to twelve. 

Jay then cited a paragraph from the instruc- 
tions sent to Jefferson in 1786, and quoted a letter 
accompanying them in which the Congress clearly 
recognized its obligation to ratify a treaty made 
in accordance with the scheme which, through 
their envoy, they had proposed to France. This 
recognition was in the following words: 

" The original scheme of the convention is far from being 
unexceptionable, but a former Congress having agreed 
to it, it would be improper now to recede ; and therefore 
Congress are content to ratify a convention made con- 
formable to that scheme, and to their act of 25th January, 
1782, provided a clause limiting its duration be added." 

The report then continues: 

On the 27th July, 1787, Congress gave to Mr. Jefferson 
a commission, in general terms, to negotiate and conclude 
with his most Christian Majesty, a convention for regu- 
lating the privileges, &c., of their respective Consuls. 

In one of the letters then written him is this paragraph: 

''Congress confide fully in your talents and discre- 
tion, and they will ratify any convention that is not liable 
to more objections than the one already, in part concluded, 
provided that an article, limiting its duration to a terra 
not exceeding twelve years be inserted." 



TREATY-MAKING POWER 9 

As the convention in question is free from several ob- 
jections to which the one of 1784 was Hable, and is, in 
every respect, preferable to it, and as it contains a clause 
limiting its duration to twelve years, it seems to follow, 
as of necessary consequence, that the United States ought 
to ratify it.^ 

Considering this transaction from beginning to 
end, it seems evident that from the time the Con- 
tinental Congress of 1782 gave its assent to a plan 
for a convention, which its agent was to negotiate 
with France, until the final act of ratification in 
1789 the government of the United States had 
acted i'n accordance with the principle of inter- 
national law, that except under extraordinary cir- 
cumstances a nation was bound to ratify any agree- 
ment which it had instructed its representative to 
make.^ That the Congress of the Confederation 
felt the weight of this obligation is conclusively 
demonstrated by its instructions and letters to 
Jefferson. Later because of the promises in these 
letters and because of a recognition of the principle 
which had given rise to them, the Secretary of 
Foreign Affairs under the Constitution informed the 
Senate that in his opinion the faith of the nation 
was pledged to ratify the convention which ulti- 
mately had been concluded. And finally the Senate 
advised ratification in accordance with this opinion 
even though it was believed that the nation would 
be the loser by the treaty ratified. 

1 Sen. Exec. Jour., I. 7-8. 

^ Moore, International Law Digest, V. 184-202, discusses thor- 
oughly the principle involved, quoting Vattel and other older as 
well as modern American and European authorities, and the opinions 
of American statesmen on the subject. See also Foster, The Practice 
of Diplomacy, Ch. XIII. 



10 THE SENATE AND TREATIES 

Yet despite the scrupulous obseTvance of the rule 
of international law in this instance, the later in- 
terpretation and application of the constitutional 
provision which divides the treaty-making power of 
the United States between the President and the 
Senate soon impelled the new state to demand ex- 
emption from the ancient principle. As long as 
the President negotiated treaties actually "by and 
with the advice and consent of the Senate" the 
United States possessed no better grounds than any 
other nation for declining to ratify, or for ratifying 
partially and conditionally, agreements signed by 
its plenipotentiaries. But when the sanction of the 
Senate was sought only after negotiation had been 
completed, it became necessary for this country to 
secure the right of rejection or amendment if the 
constitutional powers of the Senate were to amount 
to more than an empty form. There was, then, 
an intimate relation between the manner in which 
the Senate was to exercise its treaty-making powers 
and the position of the United States with reference 
to the principle of international law involved. The 
ratification of the French consular convention il- 
lustrates the position of the Senate at the outset. 



CHAPTER II 

Development of Teeaty-making Power 

THROUGH Action on Treaties with 

Indian Tribes, 1789-1795 

During the early nineties the Senate played an 
active part in negotiations which were in progress 
between the United States and Great Britain, 
Algiers, and France. None of the resulting treaties 
came before it for final action, however, until 1795, 
while in the meantime the treaty-making power was 
being vigorously exercised in concluding agreements 
between the United States and various Indian 
tribes.^ 

treaties of fort harmar 

The first of these agreements were the two treaties 
of Fort Harmar submitted to the Senate on May 25, 
1789. The consideration of the problems which arose 
in connection with these treaties occupied the at- 
tention of the Senate at intervals throughout prac- 
tically all of the first session of Congress, and in the 
end it withheld its advice and consent to the rati- 
fication of one of them. In the meantime, however, 

^ Butler, The Treaty-Making Power of the United States, II. 203, 
and Ch. XIV, passim, discusses treaties with Indian tribes; also 
Burr, The Treaty-Making Power of the United States, pp. 383-384, 
considers the constitutional and legal status of treaties with Indian 
tribes. 

11 



12 THE SENATE AND TREATIES 

one question had been definitely decided — namely, 
that the advice and consent of the Senate should 
be given to the ratification of treaties with Indian 
tribes in the same form as to treaties with foreign 
nations. The circumstances in which this decision 
was reached reveal how both the President and the 
Senate were feeling their way carefully and thought- 
fully in the determination of the technique of treaty- 
making. 

The papers which General Knox, under whose 
superintendence the business had been transacted, 
laid before the Senate included his report to the 
President, explaining the circumstances under 
which the treaties had been negotiated and signed. 
In this report the Secretary suggested the necessity, 
on constitutional grounds, of an explanation of the 
reservation in the treaty with the Six Nations of 
six square miles around the Fort at Oswego, which 
reservation was within the territory of the State 
of New York. He concluded by observing, "That, 
if this explanation should be made, and the Senate 
of the United States should concur in their approba- 
tion of the said treaties, it might be proper that the 
same should be ratified and published, with a 
proclamation enjoining the observance thereof." 
Two documents accompanied the report. No. 1 
being a representation to the old Congress against 
the treaties superseded, while No. 2 was a copy of 
the instructions under which the new treaties were 
negotiated.^ 

It was not until June 12 that the Senate found 
time to turn its attention to these treaties. On 

^ Sen. Exec. Jour., I. 3-5. 



DEVELOPMENT OF TREATY-MAKING POWER 13 

that day they were considered and put in charge 
of a committee of three, Few, Read, and Henry. ^ 
Two months later the committee reported: ^ 

That the Governor of the Western Territory, on the 
9th day of January, 1789, at Fort Harmar, entered into 
two treaties, one with the sachems and warriors of the 
Six Nations, the Mohawks excepted, the other with the 
sachems and warriors of the Wyandot, Delaware, Ottawa, 
Chippewa, Pattawattima, and Sacs nations — that those 
treaties were made in pm-suance of the powers and in- 
structions heretofore given to the said Governor by the 
late Congress, and are a confirmation of the Treaties of 
Ft. Stanwix, in October, 1784, and of Ft. Mcintosh, in 
January, 1785, and contain a more formal and regular 
conveyance to the United States of the Indian claims to 
the lands yielded to these States by the said treaties of 
1784 and 1785. 

Your Committee, therefore, submit the following reso- 
lution, viz: 

That the treaties concluded at Ft. Harmar, on the 
9th day of January, 1789 between Arthur St. Clair, Esq., 
Governor of the Western Territory, on the part of the 
United States, and the sachems and warriors of the Six 
Nations, (the Mohawks excepted,) . . . and the sachems 
and warriors of the Wyandot . . . and Sacs nations, be 
accepted; and that the President of the United States 
be advised to execute and enjoin an observance of the 
same.^ 

Seemingly the committee felt it to be a most 
important part of its duty to determine whether 
the treaties referred to it were in accord with the 
instructions under which they were negotiated, a 
feeling shared by most of the early committees on 
treaties. And it thought proper, also, to follow 
closely, in the form of the resolution, the lead given 

1 Sen. 'Exec. Jour., I. 6. - Ibid., p. 17. ' 75^^/.^ p. 24. 



14 THE SENATE AND TREATIES 

in the last clause of General Knox's report to the 
President. 

After consideration this report was allowed to he 
over until September 8, when a resolution was 
adopted advising the President ''to execute and 
enjoin an observance of" the treaty with the Wyan- 
dots and other tribes. No mention was made in 
the resolution of the treaty with the Six Nations, 
although it is recorded in the journal that both 
were considered.^ The reason for the failure of the 
Senate to act on this treaty soon appeared. 

An attested copy of the resolution adopted having 
been laid before the President, the Senate soon re- 
ceived a further communication from him on the 
subject, again delivered by General Knox, who 
meanwhile had been appointed the first Secretary 
of War under the new government.^ In this mes- 
sage Washington expressed the opinion that treaties 
with Indian tribes should be ratified under the 
same procedure as was intended to be followed with 
reference to foreign treaties, although it is clear that 
he did not think that such ratification was required 
by the Constitution. He put the matter squarely 
up to the Senate, however, in these words: ''It 
strikes me that this point should be well considered 
and settled, so that our national proceedings, in 
this respect, may become uniform, and be directed 
by fixed and stable principles." Following this 
general statement is a paragraph which reveals how 
in the original submission he had intentionally left 
to the Senate a free field in suggesting the procedure 
to be followed. Washington said: 

1 Sen. Exec. Jour., I. 25. = m^^^ pp_ 26, 27. 



DEVELOPMENT OF TEEATY-MAKING POWER 15 

The treaties with certain Indian Nations, which were 
laid before you with my message of the 25th of May 
last, suggested two questions to my mind, viz: 1st, 
Whether those treaties were to be considered as perfected, 
and consequently as obligatory, without being ratified? 
If not, then 2dly, Whether both, or either, and which of 
them, ought to be ratified? On these questions I request 
your opinion and advice.^ 

The Senate committed this message to another 
committee of three members, Carroll, King, and 
Read.2 

In its report, presented next day, this committee 
expressed the opinion that, in view of the fact that 
in the past Indian treaties had been considered as 
fully completed upon signature and without solemn 
ratification, the formal ratification of the treaty 
with the Wyandots and other Indian nations was 
not expedient or necessary; and accordingly that 
the resolution of the Senate of September 8 was all 
that was required in the case, since it authorized 
the President to "enjoin a due observance" of the 
treaty. The committee further reported that as to 
the treaty with the Six Nations, ''from particular 
circumstances affecting the ceded lands, the Senate 
did not judge it expedient to pass any act concerning 
the same." ^ 

This report, however, proved to be unacceptable 
to the majority of the Senate and in the end Wash- 
ington's suggestion as to formal ratification was 
adopted. On the following Tuesday, September 22, 
a resolution was passed ratifying in form the treaty 
with the Wyandots et al.; but in the case of the 
treaty with the Six Nations the Senate declined to 

1 Sen. Exec. Jour., I. 27. 2 j^^^^ 3 75^^., pp. 27, 28. 



16 THE SENATE AND TREATIES 

accept any responsibility either of a positive or 
of a negative sort. As the journal puts it, "And 
it being suggested that the treaty concluded at 
Fort Harmar . . . may be construed to prejudice 
the claims of the States of Massachusetts and New 
York, and of the grantees under the said states re- 
spectively. Ordered, That the consideration thereof 
be postponed until next session of Senate." ^ The 
Senate evidently continued to deem it inexpedient 
to act in this delicate matter, for no record of any 
further consideration appears in the journals of the 
next or of subsequent sessions. 

Thus by a process of give and take the Senate and 
the executive worked out the problems imposed by 
their joint functions. The direct and personal con- 
tact which still marked their relations in treaty- 
making is illustrated by the appearance before the 
Senate of General Knox as the head of the executive 
department concerned. 

TREATY WITH THE CREEK INDIANS, 1789 

Coincidently with the discussion over the rati- 
fication of the Fort Harmar treaties arose the 
question of the proper role of the Senate in the 
negotiation of such agreements and of foreign 
treaties. Very probably the early Senators ex- 
amined the treaty clause itself to see what light it 
might throw upon this question. This clause ap- 
pears in the Constitution as follows: "He [the 
President] shall have power, by and with the ad- 
vice and consent of the Senate, to make treaties, 

' Ibid., p. 28. 



DEVELOPMENT OF TREATY-MAKING POWER 17 

provided two-thirds of the Senators present concur; 
and he shall nominate, and by and with the advice 
and consent of the Senate, shall appoint ambas- 
sadors," etc. 

Senator Henry Cabot Lodge, in our own day, 
has quoted the provision in regard to nominations 
and appointments, in order to define more fully 
the preceding one relating to treaties.^ And he 
points out that it is 

well to note that the carefully phrased section gives the 
President absolute and unrestricted right to nominate, 
and the Senate can only advise and consent to the ap- 
pointment of, a given person. All right to interfere in 
the remotest degree with the power of nomination and 
the consequent power of selection is wholly taken from 
the Senate. Very different is the wording of the treaty 
clause. There the words "by and with the advice and 
consent of" come in after the words "shall haVe power" 
and before the power referred to is defined. The "advice 
and consent of the Senate" are therefore coextensive 
with the " power " conferred on the President, which is 
"to make treaties," and apply to the entire process of 
treaty-making. 

Senator Lodge concludes that except for their want 
of authority to send or to receive ambassadors or 
ministers and their consequent inability to in- 
itiate a negotiation the Senate, under the language 
of the Constitution and in the intent of the framers, 
stands on a perfect equality with the President in 
the making of treaties. That this was the opinion 
of the first executive and of the early Senates is 
clearly disclosed in their handling of Indian and 

1 Lodge, "The Treaty-Making Powers of the Senate," in A 
Fighting Frigate and Other Essays and Addresses, pp. 231-232. 



18 THE SENATE AND TREATIES 

foreign affairs, which also reveals the reasons why 
the Senate soon ceased to participate directly in 
treaty-making during the period of negotiation. 

It being then generally assumed, however, that 
the President would at times discuss personally 
with the Senate the subjects of nominations to 
office and of treaties, the question as to where 
and how, and incidentally whether, these consulta- 
tions should take place soon came up for decision. 
To this end, early in August, 1789, Senators Izard, 
King, and Carroll were appointed as a committee, 
''to wait upon the President of the United States 
and confer with him on the mode of communication 
proper to be pursued between him and the Senate, 
in the formation of treaties, and making appoint- 
ments to offices." ^ 

Two days after their appointment, August 8, 
these gentlemen conferred with the President, and 
on the tenth they held a second meeting at which 
his sentiments were finally expressed.^ Washington 
evidently felt that nominations should be made 
by written messages, but that personal conferences 
were preferable in forming treaties. In the memo- 
randum of his sentiments as expressed at the con- 
ference of August 8 he is recorded as having taken 
the position that. 

In all matters respecting Treaties, oral communications 
seem indispensably necessary; because in these a variety 
of matters are contained, all of which not only require 
consideration, but some of them may undergo much dis- 

' Sen. Exec. Jour., I. 12, 16. 

2 Washington to Madison, Aug. 9, 1789, Washington's Writings 
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419. 



DEVELOPMENT OF TREATY-MAKING POWER 19 

cussion; to do which by written communications would 
be tedious without being satisfactory.' 

And at the second conference he is reported to have 
stated his opinion as to the proper relations between 
the President and the Senate in treaty matters in 
these words: 

The President has power, by and with the advice and 
consent of the Senate, to make treaties and to appoint 
officers. 

The Senate, when this power is exercised, is evidently 
a council only to the President, however its concurrence 
may be to his acts. ... In the appointment to offices, 
the agency of the Senate is purely executive, and they 
may be summoned to the President. In treaties, the 
agency is perhaps as much of a legislative nature, and the 
business may possibly be referred to their deliberations 
in their legislative chamber. The occasion for this dis- 
tinction will be lessened if not destroyed, when a chamber 
shall be appropriated for the joint business of the Presi- 
dent and the Senate.- 

With reference to the manner of consultation the 
President observed, 

In other cases, again, as in treaties of a complicated nature, 
it may happen, that he will send his propositions in writ- 
ing, and consult the Senate in person after time shall 
have been allowed for consideration. 

And finally, because any hard and fast rule of pro- 
cedure would be very likely to prove unfortunate, 
he recommended that 

the Senate should accomodate their rules to the uncer- 
tainty of the particular mode and place, that may be 

1 Washington to Madison, Aug. 9, 1789, Washington's Writings 
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419. 

2 Ibid. 



20 THE SENATE AND TREATIES 

preferred, providing for the reception of. either oral or 
written proposition^, and for giving their consent and 
advice in either the ^presence or absence of the President, 
leaving him free to use the mode and place, that may be 
found most eligible and accordant with other business, 
which may be before him at the time.^ 

The views of the President evidently were con- 
curred in by the committee, for its report, presented 
and adopted August 21, made provision for meetings 
of the Senate and the President under procedure 
acceptable to both of them, but left it to the Presi- 
dent to decide in each particular case whether the 
business should be transacted orally or by written 
messages.- 

The judgment of the President and of the Senate 
as to the desirability and practicability of personal 
conferences upon treaties was soon to be put to 
the test of practical application. The very day 

1 Wasliington to Madison, Aug. 9, 1789, Washington's Writings 
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419. 

^ This report was adopted in the following form: '"Resolved, 
That when nominations shall be made in writing by the President 
of the United States to the Senate, a future day shall be assigned, 
unless the Senate unanimously direct otherwise, for taking them into 
consideration. That when the President of the United States 
shall meet the Senate in the Senate Chamber, the President of the 
Senate shall have a chair on the floor, be considered as the head 
of the Senate, and his chair shall be assigned to the President of 
the United States. That when the Senate shall be convened by 
the President of the United States to any other place, the President 
of the Senate and Senators shall attend at the place appointed. 
The Secretary of the Senate shall also attend to take the minutes 
of the Senate. 

"That all questions shall be put by the President of the Senate, 
either in the presence or the absence of the President of the United 
States; and the Senators shall signify their assent or dissent by 
answering, viva voce, ay or no." Sen. E.xec. Jour., I. 19. 



DEVELOPMENT OF TREATY-MAKING POWER 21 

upon which the rule of procedure was adopted the 
Senate received the following communication from 
Washington, delivered by Tobias Lear, his private 
secretary : 

Gentlemen of the Senate: The President of the United 
States will meet the Senate, in the Senate Chamber, at 
half past eleven o'clock, tomorrow, to advise with them 
on the terms of a treaty to be negotiated with the Southern 
Indians.^ 

The general problem which Washington sought to 
solve by a treaty already was well known to the 
Senate, and, indeed, to members of both houses, 
and to the country. Two weeks previously he had 
laid before the Senate the facts concerning the dis- 
putes between Georgia and other states and certain 
powerful tribes of Indians within the limits of the 
Union, and had pointed out the necessity for the 
interposition of the general government between the 
disputants. He had also suggested that if it should 
be the judgment of Congress that a treaty should 
be made with the Southern Indians, it might be 
expedient to institute a temporary commission of 
three persons, for that purpose, whose authority 
should expire with the occasion.^ Congress had 
responded by providing for the expenses of the 
proposed negotiations,^ and on August 21 the ap- 
pointment of the three commissioners had been 
confirmed.^ 

1 Richardson, Compilation of the Messages and Papers of the 
Presidents, I. 61. Phillips, Georgia and States Rights, Gh. II, dis- 
cusses the negotiation, ratification and political aspects of this 
treaty. 

2 Annals of Congress, 1789-1791, I. 59-60. ^ jj^^^^ p q^ 
^ Sen. Exec. Jour., I. 19. 



22 THE SENATE AND TREATIES 

From the standpoint of this study the interest of 
the two conferences which followed between the 
President and his constitutional advisers does not 
lie in the measures which they agreed should be 
taken to solve the problem of the moment. In 
their effect upon the treaty-making powers of the 
Senate, the meetings are of importance because they 
were so uncomfortable to both parties that Wash- 
ington never again personally consulted with the 
Senate about treaties, or, indeed, upon any other 
subject — an example which has been followed by 
every one of his successors.^ 

After explaining the points at issue between Georgia 
and North Carolina and the Indian tribes, and em- 
phasizing the importance to those states and to the 
imion of effecting a speedy settlement of the diffi- 
culty, the President asked the advice of the Senate 
upon the instructions to be given to the commis- 
sioners of the United States. This he did by sub- 
mitting seven propositions prefaced by these words : 

As it is necessary that certain principles should be 
fixed, previously to forming instructions for the Com- 
missioners, the following questions, arising out of the 
foregoing communications, are stated by the President 
of the United States, and the advice of the Senate re- 
quested thereon. 

Then followed the seven specific questions, cover- 
ing the entire instructions to the commissioners 
and designed to secure the advice of the Senate 
upon what action should be taken by them in every 
alternative that might arise during the negotiation. 

* The appearance of President Wilson before the Senate, July 10, 
1919, was not for consultation. 



DEVELOPMENT OF TREATY-MAKING POWER 23 

The questions were taken up seriatim and discussed 
by the Senators, the President, and General Knox. 
Some of the propositions were assented to or dis- 
sented from as they had been presented, while 
others were modified. The proceeding took the 
greater part of two legislative days, but finally the 
'' advice and consent" of the Senate had been given 
to a course of action intended to cover all possible 
contingencies.^ The instructions later issued to the 
commissioners conform strictly to this advice.^ 

There is little in the pages of the Senate Executive 
Journal to indicate that this method of procedure 
was not satisfactory to all parties concerned. For- 
tunately, however, we are permitted a more intimate 
view of these conferences in the familiar diary of 
Senator Maclay,^ a view which makes it seem very 
likely that Washington did say when he left the 
Senate chamber that he would *' be damned "if he 
ever came there again. ^ 

1 Sen. Exec. Jour., I. 20-24. 

^ American State Papers, Indian Affairs, I. 65-68. 

^ Journal of William Maclay, pp. 128-133. 

* This story, which John Quincy Adams recounts in his diary, 
and which has often been repeated, is as follows: "Mr. Crawford 
told twice over the story of President Washington's having at an 
early period of his administration gone to the Senate with a project 
of a treaty to be negotiated and been present at their dehberations 
upon it. They debated it and proposed alterations, so that when 
Washington left the Senate Chamber he said he would be damned if 
he ever went there again. And ever since that time treaties have 
been negotiated by the Executive hefore submitting them to the 
consideration of the Senate. 

"The President said he had come into the Senate about eighteen 
months after the first organization of the present Government, 
and then heard that something like this had occurred. 

" Crawford then repeated the story, varying the words, so as to 



24 THE SENATE AND TREATIES 

It is evident from Maclay's account that con- 
straint and tension marked the conferences from 
beginning to end. The entire proceeding must 
have been felt to be unnatural, forced, and un- 
satisfactory. Maclay's own words graphically de- 
scribe what occurred: 

Senate met, and went on the Coasting bill. The 
doorkeeper soon told us of the arrival of the President. 
The President was introduced, and took our Vice-Presi- 
dent's chair. He rose and told us bluntly that he had 
called on us for our advice and consent to some propo- 
sitions respecting the treaty to be held with the Southern 
Indians. Said he had brought General Knox with him, 
who was well acquainted with the business. He then 
turned to General Knox, who was seated on the left of 
the chair. General Knox handed him a paper, which he 
handed to the President of the Senate, who was seated on 
a chair on the floor to his right. Our Vice-President 
hurried over the paper. Carriages were driving past, 
and such a noise, I could tell it was something about 
"Indians," but was not master of one sentence of it. 
Signs were made to the doorkeeper to shut down the 
sashes. Seven heads, as we have since learned, were 
stated at the end of the paper which the Senate were to 
give their advice and consent to. They were so framed 
that it could not be done by aye or no. 

The President told us that a paper from an agent of 
the Cherokees was given to him just as he was coming to 
the Hall. He motioned to General Knox for it, and 
handed it to the President of the Senate. It was read. 
It complained hard of the unjust treatment of the people 

say that Washington swore he would never go to the Senate again." 
Memoirs of John Quincy Adams, VI. 427. 

It is evident that the story had been told to Crawford by Presi- 
dent Monroe. This was not the last treaty that was submitted 
to the Senate before negotiation, although it is the only occasion 
on which such submission was made orally by the President. 



DEVELOPMENT OF TREATY-MAKING POWER 25 

of North Carolina, etc., their violation of treaties, etc. 
Our Vice-President now read off the first article, to which 
our advice and consent were requested. It referred back 
principally to some statements in the body of the writing 
which had been read. 

Mr. Morris rose. Said the noise of carriages had 
been so great that he really could not say that he had 
heard the body of the paper which had been read, and 
prayed that it might be read again. It was so [read]. 
It was no sooner read than our Vice-President immedi- 
ately read the first head over again, and put the question: 
Do you advise and consent, etc.? There was a dead 
pause. Mr. Morris whispered to me, " We will see who 
will venture to break silence first." Our Vice-President 
was proceeding, "As many as — " 

I rose reluctantly, indeed, and, from the length of 
the pause, the hint given by Mr. Morris, and the pro- 
ceeding of our Vice-President, it appeared to me that if 
I did not no other one would, and we should have these 
advices and consents ravished, in a degree, from us. 

Maclay then called for the reading of the treaties 
and the other documents referred to in the message 
of the President. Whether or not he saw only 
what he expected, we have no means of knowing. 
But he records that he then "cast an eye at the 
President of the United States. I saw he wore an 
aspect of stern displeasure." Other senators par- 
ticipated in the discussion and called for the reading 
of particular papers. As our diarist laconically puts 
it, ''The business labored with the Senate." The 
first two articles were postponed and a long dis- 
cussion over the merits of the third article followed, 
in which Ellsworth, Lee, and Izard discoursed 
learnedly until Morris ''at last informed the dis- 
putants that they were debating a subject that was 



26 THE SENATE AND TREATIES 

actually postponed." This statement gave rise to a 
parlimentary wrangle which ended in repassing the 
motion to postpone. 

At this point Morris, following a whispered sug- 
gestion from his colleague, rose and moved that all 
the papers be committed. More debate then fol- 
lowed, in which Butler made his pertinent and oft- 
quoted statement that the Senate was acting as a 
council, and that no council ever conamitted any- 
thing. Maclay himself concluded the debate by 
what must have been a stilted and pedantic dis- 
sertation upon the advantages of doing business by 
committees. This apparently brought Washington 
to his feet in exasperation, for Maclay states: 

As I sat down, the President of the United States 
started up in a violent fret. "This defeats every purpose 
of my coming here/' were the first words he said. He then 
went on that he had brought his Secretary of War with 
him to give every necessary information; that the Secre- 
tary knew all about the business, and yet he was delayed 
and could not go on with the matter. He cooled, how- 
ever, by degrees. 

The entry in the diary continues to describe the 
whole of the two conferences. But this is enough, 
perhaps, to explain why Washington changed his 
mind about the desirability of oral communications 
where treaties were concerned. As the Senate in- 
creased in size the inherent difficulties of personal 
consultation became greater, and for this and other 
reasons it is not surprising that none of his succes- 
sors has ever repeated an experiment which Wash- 
ington found to be so unpleasant. 



DEVELOPMENT OF TREATY-MAKING POWER 27 

In its inception, then, the Creek treaty (1) indi- 
cates that the President considered it at least de- 
sirable to secure in advance the detailed and specific 
advice of the Senate as to the instructions under 
which treaties were to be negotiated; (2) it shows 
that he believed personal consultation to be the 
most advantageous method of taking this advice; 
and (3) it demonstrates that such procedure was 
found to be unsatisfactory both to the President 
and to the Senate. 

But even after having consulted the Senate upon 
the instructions to be given to the commissioners, 
Washington did not take the whole negotiation 
into his own hands and ignore the Senate until 
the completed treaty was laid before it. Some 
four months later, January 11, 1790, he commu- 
nicated to the Senate the instructions which he had 
given to the commissioners and their report upon 
the negotiation, in which the Creeks had refused 
to conclude a treaty.^ 

In the following summer representatives of the 
Creek Nation came to New York for further nego- 
tiation, and in August Washington informed the 
Senate that the "adjustment of the terms of the 
treaty is far advanced." ^ He also submitted a 

1 American State Papers, Indian Affairs, I. 59. The entry in 
the journal of the Senate is, "Ordered, That the communication 
from the President of the United States be deferred for consider- 
ation." Sen. Exec. Jour., I. 36. 

Maclay, however, records that "a considerable part of the day" 
was spent in reading the proceedings of the commissioners. Journal 
of William Maclay, pp. 174-5. The papers submitted cover twenty 
pages in the foho volume — some 48,000 words. 

2 Sen. Exec. Jour., I. 55-56. 



28 THE SENATE AND TEEATIES 

proposed secret article to be added to the treaty 
for the purpose of transferring the trade of the 
Indians from Enghsh and Spanish to American 
control. After consideration it was, 

Resolved, That the Senate do advise and consent to 
the execution of the secret article referred to in the mes- 
sage, and that the blank in said article be filed in with 
the words, "the President of the United States." ^ 

On August 6 the Senate was informed that the 
negotiation had reached the point where the busi- 
ness might be conducted and concluded in form. 
General Knox was nominated to conclude the treaty 
and the nomination was at once confirmed. On 
the following day the signed treaty was transmitted 
with a message explaining its salient features and 
offering to have communicated to the Senate such 
papers, documents, and information concerning it as 
might be required.^ 

By taking their advice on the instructions to the 
commissioners, by informing them of the progress 
of the negotiation, and by securing their formal 
advice and consent to the secret article, the Presi- 
dent would seem to have made the agreement with 
the Creeks as much the Senate's treaty as his own. 
Neither party, however, seems to have assumed that 
the advice and consent which the Senate had given 
to the negotiation of the treaty in accordance with 
certain definite propositions constituted the whole 
of the senatorial assent contemplated by the Con- 
stitution. Article XIV of the treaty specifically pro- 
vides that, "This treaty shall take effect and be 

1 Sen. Exec. Jour., I. 56. = Ibid., pp. .57-58. 



DEVELOPMENT OF TREATY-MAKING POWER 29 

obligatory on the contracting parties, as soon as 
the same shall have been ratified by the President 
of the United States, with the advice and consent 
of the Senate of the United States." ^ 

The message of the President and the treaty were 
read in the Senate on the Saturday upon which 
they were received and it was then ordered that 
they lie for consideration. Upon taking the matter 
up the following Monday, a motion, supported by 
those who opposed the treaty, to refer it to a select 
conmiittee failed by an eight to ten yea and nay 
vote.^ 

It was then proposed: 

That, on the final question, when the advice and con- 
sent of the Senate is requested, any member shall have a 
right to enter his protest or dissent on the journal, with 
reasons in support of such dissent; provided the same be 
offered within two days after the determination on such 
final question. 

This motion failed, fifteen to four.^ 

Three days later the treaty was again taken up 
and by a yea and nay vote of fifteen to four the 
advice and consent of the Senate given in the fol- 
lowing form: 

"Resolved, (two thirds of the Senators present 
concurring therein,) That the Senate do consent to 
the aforesaid treaty, and do advise the President of 
the United States to ratify the same." ^ 

' Indian Affairs, Laws and Treaties, II. 22, Sen. Doc, vol. 35, 
no. 452, ser. no. 4254, 57th Cong., 1st Sess. 

2 Sen. Exec. Jour., I. 59. ^ Ibid. 

^ Sen. Exec. Jour., I. 61, 62. It seems to have been merely a 
coincidence that the motion to allow members to enter upon the 
journal their protests or dissents from the action of the Senate in 



30 THE SENATE AND TREATIES 

TREATY WITH THE CHEROKEE INDIANS 

On the day before the final action of the Senate 
on the Creek agreement a message was transmitted 
to them by Washington asking their advice and 
consent to the principal terms of a proposed treaty 
to settle somewhat similar difficulties which had 
arisen between Georgia and the Cherokees. The 
United States was involved in the matter as a result 
of its treaty of November, 1785, with this tribe of 
Indians. The President recited that by this agree- 
ment, known as the Treaty of Hopewell, the Chero- 
kees had placed themselves under the protection of 
the United States, that a boundary had been as- 
signed to them, and that the whites on the frontier 
had openly violated this boundary by settling on 
the Cherokee lands, and had ignored the proclama- 
tion of the Congress of 1788 ordering them out. In 
view of the facts Washington felt it to be his duty 
either to enforce the old treaty or to negotiate a 
new one. He therefore stated the following ques- 
tions and requested the advice of the Senate thereon : 

1st. Is it the judgment of the Senate that overtures 
shall be made to the Cherokees to arrange a new boundary 
so as to embrace the settlements made by the white 
people since the treaty of Hopewell, in November, 1785? 

giving its advice and consent failed by the same vote by which the 
treaty itself passed. Butler of South Carolina and Gunn of Georgia 
voted for the first proposition, and against the resolution of advice 
and consent. But Gunn's colleague Few, who also opposed the 
ratification of the treaty, voted nay on the motion to allow dissent- 
ing opinions to be recorded in the journal. Both Izard of North 
Carolina and Lee of Virginia, who supported the latter proposition, 
voted in favor of the ratification of the treaty. 



DEVELOPMENT OF TREATY-MAKING POWER 31 

2d. If SO, shall compensation, to the amount of 



dollars annually, or of dollars in gross, be made to 

the Cherokees for the land they shall relinquish, holding 
the occupiers of the land accountable to the United 
States for its value? 

3d. Shall the United States stipulate solemnly to 
guarantee the new boundary which may be arranged? ^ 

Two differences are to be noticed between these 
questions and those put to the Senate in the case 
of the Creek treaty. The latter were propounded 
by Washington in person; the former were pre- 
sented in writing by the President's secretary and 
nothing was said about either Washington or Gen- 
eral Knox attending or furnishing any information 
other than that contained in the message itself. 
Also, the questions are of a more general nature, and 
do not attempt to cover the various alternatives 
which might be expected to arise in the negotiation. 
Further, the questions were answered in a different 
manner, the Senate discussing the whole matter at 
will and then summing up its conclusions in two 
brief resolutions. In replying to the first of the 
three questions, the Senate left it to the President* 
either to cause the treaty of Hopewell to be carried 
into execution or to enter into arrangements with 
the Cherokees for a further cession of territory. 
The alternative of an annual payment was recom- 
mended, the amount being limited to 11000, and 
the condition was laid down that the occupiers of the 
land should be confirmed in possession only by 
a compliance with such terms as Congress might 
afterwards prescribe. And, finally, it was 

^ Sen. Exec. Jour., I. 61. 



32 THE SENATE AND TREATIES 

Resolved, In case a new, or other boundary than that 
stipulated by the treaty of Hopewell, shall be concluded 
with the Cherokee Indians, that the Senate do advise 
and consent solemnly to guarantee the same.^ 

This last resolution was of a type adopted several 
times by the Senate during the early administrations. 
Later Senates did not bind themselves thus in ad- 
vance, and would have deemed such a promise in- 
compatible with their right to withhold their assent 
from any provision of a treaty submitted to them. 
What would have been the position of the Senate 
had the President concluded a treaty with the 
Cherokees creating a boundary that threatened to 
bring Georgia into serious conflict with the federal 
government? How far would it have held itself 
to be bound by this resolution, — particularly if 
the balance of power had passed from one party to 
the other in the interim? These questions did not 
then arise, but it is inevitable that sooner or later 
some such situation would have been created had 
this practice become established. The resolution, 
however, is but another expression of the general 
'principle which governed in the ratification of the 
French consular convention, namely, that a nation 
is bound to accept treaties signed by its plenipo- 
tentiaries, provided the latter have followed their 
instructions. It will be perceived that at this time 
both the Senate and the President were acting in 
accordance with the first of the two alternatives 
suggested in that connection — that is, under the 
theory that the Senate should participate in deciding 
what instructions should be given to the negotiator, 

^ Sen. Exec. Jour., I. 61. 



DEVELOPMENT OF TREATY-MAKING POWER 33 

and then be bound to the same extent as was the 
President to ratify the resulting treaty. 

The treaty which was concluded with the Chero- 
kees in accordance with the advice given by the 
Senate on August 11, 1790, was submitted to the 
Senate more than a year later, two days after the 
meeting of the first session of the second Congress. 
With it were transmitted the papers which related 
to the negotiations, amounting in all to some 7000 
words.^ The message, treaty, and papers were read 
and ordered to lie for consideration,- and a week 
later were referred to a committee composed of 
Hawkins, Cabot, and Sherman.^ This committee re- 
ported, in part, as follows: 

That they have examined the said treaty, and find it 
strictly conformable to the instructions given by the 
President of the United States. 

That these instructions were founded on the advice 
and consent of the Senate, of the 11th of August, 1790. 

That the stipulations in the 14th article are similar 
to those gratuitously promised to the Creeks; and al- 
though they form an excess to the sum limited in the 
resolution aforesaid, yet from the beneficial effects likely 
to be produced thereby, cannot be objectionable. 

The committee briefly described the new boundary 
and expressed the opinion that the treaty should be 
ratified, whereupon the Senate agreed to the re- 
port and formally gave its consent to the treaty and 
advised its ratification by the President.^ 

Thus in the treaty with the Cherokees as in that 

1 Sen. Exec. Jour., I. 85; Am. State Papers, Indian Affairs. I. 
123-129. 

2 Sen. Exec. Jour., I. 85. 3 jj^ifi^ pp_ §5^ gg/ 
^ Ihid. pp. 88, 89. 



34 THE SENATE AND TREATIES 

with the Creeks the Senate was asked in advance 
to give its advice as to the terms to be proposed by 
the commissioners of the United States. The prin- 
cipal difference in the procedure was that in the 
earher case this advice was given during a personal 
consultation between the President and the Senate, 
while the details of the later negotiation were 
settled by messages between the two. The pro- 
cedure of the Senate subsequently to the signature 
of the treaty was much the same in each case, except 
that the Cherokee agreement was referred to a 
committee, while no such reference was made when 
the question of the ratification of the Creek treaty 
was being considered. 

It should be observed that in this, as in other 
cases, the report of the committee emphasized the 
general conformity of the treaty with the advice 
and consent of the Senate given prior to the nego- 
tiation, and that evidently it was considered that 
such conformity laid upon the Senate an obligation 
to assent to ratification. The single stipulation not 
conforming with this prior consent was noted by the 
committee but was declared to be unobjectionable. 

OTHER TREATIES WITH INDIAN TRIBES 

In 1794 the Senate for the first time exercised 
its prerogative of refusing to consent to the rati- 
fication of a treaty negotiated by the executive. 
In 1793 General Putnam had concluded a treaty of 
peace and ' friendship with the Wabash and Illi- 
nois Indians, acting under instructions about which 
the Senate never had been consulted. The result 



DEVELOPMENT OF TREATY-MAKING POWER 35 

of his negotiations was submitted to the Senate 
February 13, 1793, with a message in which the 
President adopted a course which frequently was 
followed in later years — that is, he himself sug- 
gested the ratification of the treaty with an amend- 
ment. In making this suggestion he said: 

After the Senate shall have considered this treaty, I 
request that they would give me their advice whether 
the same shall be ratified and confirmed; and, if to be 
ratified and confirmed, whether it would not be proper, 
in order to prevent any misconception hereafter of the 
fourth article, to guard, in the ratification, the exclusive 
pre-emption of the United States to the land of the said 
Indians.^ 

In this instance, however, the presidential sugges- 
tion did not meet with favor in the Senate. After 
that body had considered the treaty upon three 
separate occasions, the whole matter was referred 
to a committee of which Burr was chairman.^ 
The report of this committee, which was adopted^ 
reconmiended that further consideration of the 
treaty be postponed until the next session of Con- 
gress, and that in the meantime the President be 
requested to cause an explanatory article to be nego- 
tiated with the Indians, reserving the preemptive 

1 The fourth article of this treaty was as follows: "The United 
States solemnly guaranty to the Wabash, and the Illinois nations, 
or tribes of Indians, all the lands to which they have just claim; 
and no part shall ever be taken from them, but by a fair purchase, 

• and to their satisfaction. That the lands originally belonged to 
the Indians; it is theirs and theirs only. That they have a right 
to sell, and a right to refuse to sell. And that the United States 
will protect them in their said just rights." Am. State Papers, 
Indian Relations, I. 338. 

2 Sen. Exec. Jour., I. 128. 



36 THE SENATE AND TEEATIES 

rights in the Indian lands to the United States, as 
he had suggested in his message.^ 

Before this could be done, however, most of the 
chiefs who had signed the treaty had died of small- 
pox, and early in the next session the President re- 
ported that while his instructions to other com- 
missioners had been modified to protect the rights 
in question in the future, nothing could be effected 
towards modifying this particular treaty.^ This 
brought the treaty and Washington's original sug- 
gestion once more before the Senate. Upon the 
failure of an attempt again to postpone action until 
the next session, with a renewal of the suggestion 
that the President cause an explanation to the 
fourth article to be negotiated, the friends of the 
treaty sought to secure ratification with a proviso 
such as that originally proposed by Washington. 
They failed in this, however, and the matter finally 
was concluded by the rejection by a vote of twenty- 
one to four of a simple resolution of advice and 
consent to ratification.^ It is evident from the 
votes that a large minority of the Senate was ready 
to give the President another opportunity to modify 
the treaty and perhaps to accept it with the sug- 
gested proviso. But only four of this minority, 
Cabot, Ellsworth, Foster, and Strong, voted for 
the resolution to accept the treaty as it stood.^ 
Thus the Senate for the first time declined to give 
its advice and consent to the ratification of a treaty 
negotiated under the direction of the President. 

1 Sen. Exec. Jour., I. 134-135. 

^ Ibid., p. 145; Am. State Papers, Indian Affair.'^, I. 470. 

3 Ibid., pp. 145-6. " Ibid. 



DEVELOPMENT OF TREATY-MAKING POWER 37 

The rejection is especially notable because the treaty 
from which assent was withheld was one of the 
first to be negotiated by the executive independently 
of the Senate. On this account the position of the 
Senate with reference to ratification was likewise 
one of independence — an independence which was 
manifested first in the refusal to accede to the 
presidential suggestion that a conditional ratification 
be resorted to, and second in the rejection of the 
treaty when the suggested negotiation had failed to 
remove or alter the provision to which exception 
had been taken. 

Procedure upon all but one of the remaining 
Indian treaties considered by the Senate during 
Washington's administrations may be disposed of 
in comparatively few words. ^ Four of these were 
signed by executive agents without any consulta- 
tion with the Senate either before or during nego- 
tiation. In no case did the latter body take ex- 
ception to being thus ignored, the ratification of 
each of the treaties being consented to with little 
opposition. Light is thrown upon the position 
taken by Washington on this point by certain facts 
in connection with the Treaty of Greenville with 
the Indians northwest of the Ohio. On February 

^ The following additional treaties were before the Senate dur- 
ing Washington's administration: Six Nations, 1794 — Sen. Exec. 
Jour., I. 168-170; Oneidas and Others, 1794 — Ibid.; Indians 
Northwest of the Ohio (Greenville), 1795 — Ihid., pp. 193 -197; Seven 
Nations of Canada, 1797 — Ihid., pp. 219-220; Additional Article, 
Cherokee Nation (1791), 1792 — /bid., pp. 98-99; Additional Ar- 
ticle, Cherokee Nation (Holston Treaty), 1794 — Ihid., pp. 168- 
170; Additional Article, Five Nations, 11^2 — Ihid., p. 116. 

The treaty with the Creek Nation, 1796, is discussed on pp. 
95-107 below. 



d8 THE SENATE AND TREATIES 

25, 1793, the three heads of departments and the 
Attorney General were asked four questions as to 
the kind of treaty that should be sought, and as 
to the powers in the matter possessed respectively 
by the executive alone and by the executive and the 
Senate. In response to the fourth question, whether 
the Senate should previously be consulted upon the 
extent of the relinquishments of land which should 
be made to the Indians in order to secure peace, 
the cabinet expressed the unanimous opinion that 
it would be better not to consult them previously. 
The following paragraph from a memorandum made 
by Jefferson the day after the conference explains 
why the cabinet gave this advice: "Fourth question. 
We all thought if the Senate should be consulted, 
and consequently apprised of our line, it would be- 
come known to Hammond,^ and we would lose all 
chance of saving anything more than our ulti- 
matum." This advice was followed and the first 
official intimation given to the Senate of the in- 
structions under which the resulting treaty was 
negotiated was received when the completed agree- 
ment was laid before them. 

It is only necessary to compare the procedure in 
this case with that upon two earlier Indian treaties 
to appreciate the extent to which the practical 
forces of politics were changing the manner in which 
the President and the Senate exercised their function 
of treaty-making. Before approaching the Creeks 
in 1789 Washington personally appeared before the 
Senate, and after prolonged consultation received 
in advance their advice and consent in detail to 

' George Hammond, British minister to the United States. 



DEVELOPMENT OF TREATY-MAKING POWER 39 

instructions which embodied every provision of the 
proposed treaty. A year later, as the Senate was 
about to consent to the ratification of the Creek 
treaty, he laid before them for their formal sanction, 
this time by written message, the general proposi- 
tions upon which he desired to base an agreement 
with the Cherokees. And finally, in 1793, when it 
became necessary to settle the problems arising out 
of Indian and British relations in the northwest, 
he decided from motives of expediency not to con- 
sult the Senate in any way until after the proposed 
treaty had been signed. 

In addition to the new treaties with Indian 
tribes which were made during Washington's ad- 
ministration, it was found advisable in 1792 to 
provide for increasing the annuities paid to the 
Five Nations, under the Treaty of 1789,^ and to 
the Cherokees, under the treaty of 1791,^ from 
$1000 to $1500. In each case the President ex- 
plained to the Senate the reasons for granting the 
increase and asked and received its advice as to 
the negotiation of the additional article providing 
for it, after which the articles were signed and pro- 
claimed without any further question. 

1 Sen. Exec. Jour., I. 116. 2 /^^c^,^ pp. 98-99. 



CHAPTER III 

The Treaties with Algiers and Spain, 
1790-1796 

During Washington's administrations the Senate 
was called upon to participate in making the Jay 
treaty, the treaty of peace and amity with the 
Dey of Algiers, concluded in September, 1795, and 
the Spanish treaty signed a month later. In each 
case it played an important part not only in the 
ratification of the treaty, but also during its nego- 
tiation. And as these three treaties were the result 
of much of the diplomacy of the first eight years of 
our national existence, it follows that the Senate 
exercised a constant influence over our foreign re- 
lations during this period. Although these nego- 
tiations will be taken up separately, it should be 
borne in mind that they were being carried on 
sunultaneously.^ 

the treaty with ALGIERS, 1795 

In his second annual address, delivered December 
8, 1790, Washington briefly directed the attention of 

^ The relations with England leading up to the Jay Treaty 
were first considered in the Senate February 9, 1790; the treaty 
was submitted to the Senate for its advice and consent June 8, 
1795, which advice and consent were given, conditionally, June 24, 
1795; for the treaty with Algiers the dates were December 30, 1790, 
February 15, 1796, March 2, 1796; for the Spanish treaty, January 
11, 1792, February 26, 1796, March 3, 1796. 

40 



THE TREATIES WITH ALGIERS AND SPAIN 41 

Congress to the distressed condition of American 
trade in the Mediterranean and recommended de- 
liberations which might lead to its rehef and pro- 
tection.^ A committee consisting of Langdon, 
Morris, King, Strong, and Ellsworth was appointed 
to consider the matter, and to it also was referred a 
message from Washington to Congress dated De- 
cember 30, 1790, submitting a report from the 
Secretary of State setting forth the facts concerning 
the capture of twenty-one American seamen by 
the Algerines in 1785 and outlining the efforts since 
made by the government to ransom them at a 
reasonable price. ^ On December 30, also, another 
report of the Secretary of State on commerce in the 
Mediterranean was submitted to the House of 
Representatives and four days later was laid before 
the Senate. After thoroughly analyzing the situa- 
tion Jefferson concluded that "Upon the whole, it 
rests with Congress to decide between war, tribute, 
and ransom, as the means of establishing our Med- 
iterranean commerce." ^ In the same document 
Congress was informed that the death of the late 
Emperor of Morocco had made it necessary to ob- 
tain immediate recognition by his successor of the 
liberal treaty of 1787 with that power, a treaty 
necessary to our Atlantic as well as to our Med- 
iterranean trade."* It will be seen, therefore, that 
the question of our Mediterranean commerce in- 

1 Richardson, A Compilation of the Messages and Papers of the 
Presidents, 1789-1897, 1.83. Cited below as Richardson, Messages. 

2 American State Papers, Foreign Relations, I. 100-104; Annals 
of Congress, 1789-1791, II. 1735, 1740-1741. 

* Am. State Papers, For. Rels., I. 105. * Ibid. 



42 THE SENATE AND TREATIES 

volved three points: first, the ransoming or rescu- 
ing of the twenty-one seamen held captive by the 
Algerines; second, by force or by tribute securing 
our ships from further molestation; third, securing 
recognition by the new Emperor of Morocco of our 
treaty with that nation. The solution of this 
problem, or of any part of it, required the expenditure 
of money; and circumstances were such that if 
negotiations for a treaty with Algiers were resorted 
to the executive must be able to go to the Dey with 
cash in hand. Consequently both the executive 
and the Senate soon had to decide what would be 
the relations in this matter between themselves, re- 
spectively, and the House of Representatives, whose 
assent would be required for any appropriation. 

Langdon's committee reported on January 6^ 
1791,^ that the trade of the United States in the 
Mediterranean could be protected only by a naval 
force, and that it would be proper to resort to such 
force as soon as the state of the public finances 
would permit.- When, three weeks later, the 
Secretary of State transmitted another statement re- 
garding the Algerine prisoners, this was referred 
to the same committee, whose report of the sixth 
was recommitted.^ On February 1, this time in ex- 
ecutive session, Langdon's committee was again 
heard from, now on the subject of the American 
captives and the Moroccan treaty. It reported a 
resolution : 

1 See page 41 above. 

2 Annals of Congress, 1789-1791, II. 1744; Ayn. Slate Papers, 
For. Rels., I. lOS. 

3 Ibid. p. 1749; Am. Slate Papers, For. Rels., I. 116-120. 



THE TREATIES WITH ALGIERS AND SPAIN 43 

That the Senate advise and consent that the President 
of the United States take such measures as he may think 
necessary for the redemption of the citizens of the United 
States now in captivity at Algiers, provided the expense 
should not exceed forty thousand dollars; and also that 
measures be taken to confirm that treaty now existing 
between the United States and the Emperor of Morocco, 
provided that no greater sum than twenty thousand 
dollars be expended in that business. 

With the exception of the proviso limiting the ex- 
pense in the Moroccan business to $20,000 this 
resolution was adopted. At the same time another 
report of the committee, identical with that of 
January 6, was again recommitted.^ 

The resolution of advice was referred by the Presi- 
dent to his Secretary of State, and by February 22 
Jefferson had prepared a reply which was signed by 
Washington and submitted on that date.^ The 
Senate was informed that the President would 
proceed to ransom the Algerine captives, and to 
secure recognition of the treaty with Morocco as 
soon as the necessary money had been appropriated 
by the legislature.^ The matter was again referred 
to Langdon's committee, and on March 3 the 
Senate adopted the resolution which he reported to 
it, as follows: 

Whereas, since the resolution of the Senate advising the 
President of the United States to take measures for the 
ransom of American captives at Algiers, large appropria- 

1 Sen. Exec. Jour., I. 72-73. For the conclusion of the Morocco 
business, see pp. 52-53 below. 

2 Writings of Thomas Jefferson, IX. 331, 343-5; Jefferson to 
Madison, April 19, 1796 and enclosure. 

3 Sen. Exec. Jour., I. 75. 



44 THE SENATE AND TREATIES 

tions of money have been made for the protection of the 
Western frontiers: 

Resolved, That the Senate do advise and consent that 
the President of the United States suspend any opera- 
tions under the said resolutions, for the ransom of said 
captives, until the situation of the treasury shall more 
clearly authorize the appropriation of money for that 
purpose.^ 

As this resolution was passed on the last day of 
the second session, it meant that the matter was 
to be held over until the next Congress. 

Probably the Senate withdrew the ''advice " which 
it had given a month previously not so much be- 
cause the "situation of the treasury" had changed, 
as because Washington had intimated that he 
would not undertake the negotiations until the 
money required had been appropriated by Congress. 
The Senate was unwilling to ask the House of Rep- 
resentatives for an advance appropriation, and at 
the same time w^as not quite ready to advise the 
President to proceed without one. 

Early in the first session of the second Congress- 
the fate of the Algerine captives was again brought 
before the Senate by a petition of one of their num- 
ber who had been privately ransomed. It was now 
ordered that all communications on the subject be 
referred to a committee to be composed of Butler,. 
Langdon, Morris, King, and Strong, with instruc- 
tions to report thereon."^ On December 6 this 
committee recommended^ that it be, "Resolved by 
the Senate of the United States, in their capacity as 

1 Sen. Exec. Jour., I. 78. 

2 Annals of Congress, 1791-1793, I. 26. 

3 Sen. Exec. Jour., I. 91. 



THE TREATIES WITH ALGIERS AND SPAIN 45 

Council of Advice," that if the President should 
secure a treaty with Algiers, Tunis, and Tripoli at 
an expense not exceeding $100,000 per year, and 
should ransom the Algerine captives at an expense 
of not more than $40,000 the Senate would advise 
and consent to the same and would also approve 
the expenditure of $5000 in the negotiation. It 
was recommended, further, that if no such treaty 
should be secured $2400 should be distributed an- 
nually among the families of the capliives.^ 

This report was not accepted by the Senate but 
was made the basis of debate on the general question 
upon six different occasions during the following 
three months.- Early in March, 1791, it "was 

^ This report was as follows: "Resolved by the Senate of the 
United States, in their capacity as Council of Advice, That if the 
President of the United States shall enter into any treaty con- 
vention for the purpose of establishing and preserving a peace 
with the Regency of Algiers and with Tunis and Tripoli, at an 
expense not exceeding one hundred thousand dollars annually, 
for such term of years [as] shall be stipulated, and for the purpose 
of ransoming the citizens of the United States in captivity with the 
Algerines, 'at an expense not exceeding forty thousand dollars for 
the said ransom.' the Senate will advise and consent to the same, 
and ratify and approve any measures which the President of the 
United States shall take for accomplishing these measures to an 
amount not exceeding five thousand dollars, although such measures 
should prove unsuccessful. 

"Resolved, That if a convention or treaty for the estabhshment 
of peace cannot be made with the Regency of Algiers the sum of 
two thousand four hundred dollars annually shall be distributed 
among the said captives or their famihes, as they may prefer, and 
in such proportion as the President of the United States shall order 
and direct during their captivity." Compilation of Reports of the 
Committee on Foreign Relations, United States Senate, 1789-1901, 
VIII. 6. Cited below as, Compilation of Reports, Sen. Com. For. 
Rels. 

2 Sen. Exec. Jour., I. 91-100. 



46 THE SENATE AND TREATIES 

agreed to commit the report for the purpose of 
conferring with the President of the United States, 
on the subject matter thereof, to Mr. King, Mr. 
Morris, and Mr. Izard." ^ In Jefferson's notes on 
the conferences of this committee with Washington 
is to be found the real explanation of the failure of 
the Senate to act. ''The President," he recorded, 

had wished to redeem our captives at Algiers, and to 
make peace with them on paying an annual tribute. 
The Senate were willing to approve this, but unwilling 
to have the lower House applied to previously to furnish 
the money; they wished the President to take the money 
from the treasury, or open a loan for it. They thought 
that to consult the Representatives on one occasion, 
would give them a handle always to claim it, and would 
let them into a participation of the power of making 
treaties, which the Constitution had given exclusively to 
the President and the Senate. They said, too, that if 
the particular sum was voted by the Representatives, it 
would not be a secret. 

Concerning Washington's position, Jefferson 

continued, 

The President had no confidence in the Secrecy of the 
Senate, and did not choose to take money from the 
Treasury or to borrow. But he agreed he would enter 
into provisional treaties with the Algerines not to be 
binding on us until ratified here.^ 

1 Sen. Exec. Jour., p. 106. 

2 The Writings of Thomas Jefferson (Definitive edition), I. 294, 
295, 305-309. "In this very case Mr. Izard made the communi- 
cation to him, sitting next to him at table, on the one hand, while 
a lady (Mrs. McLane) was on his other hand, and the French 
minister next to her; and as Mr. Izard got on with his communi- 
cation, his voice kept rising, and his stutter bolting the words out 
loudly at intervals, so that the minister might hear if he would. 
He said he had a great mind at one time to have got up, in order 
to put a stop to Mr. Izard." 



THE TREATIES WITH ALGIERS AND SPAIN 47 

Jefferson himself was opposed to ''hazarding this 
transaction without the sanction of both Houses." 
"I had observed," he wrote, 

that wherever the agency of either, or both Houses 
would be requisite subsequent to a treaty, to carry it 
into effect, it would be prudent to consult them pre- 
viously if the occasion admitted. That thus it was, we 
were in the habit of consulting the Senate previously, 
when the occasion permitted because their subsequent 
ratification would be necessary. That there was the same 
reason for consulting the lower House previously, where 
they were to be called on afterwards, and especially in 
the case of money, as they held the purse strings, and would 
be jealous of them. However, -he desired me to strike 
out the intimation that the seal would not be put till 
both Houses should have voted the money.^ 

No official record of the report of the committee 
of three has been preserved. ^ But whatever they 
may have recommended to the Senate, the outcome 
was that the appropriation which Washington de- 
sired was made by Congress before he proceeded 

1 The Writings of Thomas Jefferson. I. 294, 295, 305-309. 

2 A number of years later Jefferson found among his press copies 
the following, in his own handwriting: "The committee to report, 
that the President does not think that circumstances will justify, 
in the present instance, his entering into absolute engagements for 
the ransom of our captives in Algiers, nor calling for money from the 
Treasury, nor raising it by loan, without previous authority from 
both branches of the Legislature. April 9, 1792." In sending this 
paper to Madison in 1796 Jefferson stated that to the best of his 
recollection this was a minute that he had given privately to a 
member of the committee as expressing the substance of what had 
passed with the President, and that it probably had been used by 
the committee in its report to the Senate. However that may be, 
it is evident that the President adhered to his decision that the 
treaty should not be made until both houses should have voted the 
money. The Writings of Thomas Jefferson, IX. 331, 343-345. 



48 THE SENATE AND TREATIES 

with the negotiations. From the beginning the 
House had been kept informed of the status of our 
affairs in the Mediterranean as, indeed, it was 
throughout the entire negotiation of the treaty. 
As a result of this pohcy the representatives un- 
doubtedly were fully conversant with the needs of 
the situation. In procuring the appropriation 
Washington, or Jefferson, must have acted through 
informal conferences with individual members; prob- 
ably it is on this account that it now seems to be 
impossible to ascertain the manner in which they 
secured the passage of the bill.^ 

The House voted to make the appropriation, 
however, on the last day of the session, and the 
measure was at once presented to the Senate. 
Here the bill was read twice and referred to Morris, 
Cabot, and Ellsworth, who at the same time were 
asked to consider and report upon a message from 
the President on the Algerine matter. In this 
message Washington inquired if the Senate would 
approve a treaty providing for the ransom of the 

1 Tracing the matter as it appears in the Annals of Congress 
it is to be observed that on April 18 a petition was presented by 
two men ransomed from the Algerines by private means asking to 
be reimbursed for the amount of their ransom and their expenses 
from Algiers to the United States, and also that measures be taken 
to secure the ransom of the remaining prisoners. Annals of Con- 
gress, 1791-1793, p. 559. 

The committee to which this petition was referred reported 
April 26, and their report was referred to "the Committee of the 
Whole House on the bill making certain appropriations therein 
mentioned." Ihid., p. 580. 

On May 7 this bill was considered in the Committee of the Whole, 
and ordered to be engrossed and read a third time on the morrow 
and on the eighth the first business recorded in the Annals is its 
passage. Ibid., p. 600. 



THE TREATIES WITH ALGIERS AND SPAIN 49 

Algerine captives at a cost not to exceed $40,000, 
or if there was any greater or lesser sum which they 
would fix as the limit beyond which they would not 
approve the ransom. The same question was 
asked with reference to a treaty of peace at the cost 
of $25,000 down and a hke sum to be paid annually 
during the continuance of the treaty. By adopting 
the resolution reported by the committee, the 
Senate promised to approve a treaty of peace pro- 
viding for the payment of $25,000 upon signature 
and for an annual gift of $40,000 thereafter. The 
President was also informed that ''in case such a 
treaty be concluded," the Senate would approve 
another agreement providing for the ransom of 
the captives at a cost not to exceed $25,000.^ 

At the same time the committee reported the 
House appropriation bill with an amendment, 
which was adopted by the Senate and agreed to by 
the House, the bill thus passing both chambers on 
the last day of the session. Section three of the 
act made the appropriation desired by the Presi- 
dent by enacting 

that a sum of fifty thousand dollars ... be appropriated 
to defray any expense which may be incurred in relation 
to the intercourse between the United States and foreign 
nations, ... to be applied under the direction of the 
President of the United States who, if necessary, is 
authorized to borrow, on the credit of the United States, 
the said sum of fifty thousand dollars; an account of the 
expenditure whereof as soon as may be, shall be laid 
before Congress.^ 

1 Sen. Exec. Jour., I. 122-123. 

2 Statutes at Large of the United States of America, I. 284^285 
(Acts of 2d Cong., 1st Sess., Chap. XLI, Sec. 3). 



50 THE SENATE AND TEEATIES 

The Senate thus had agreed to approve a treaty 
or treaties which called for a preliminary payment 
of $50,000, the exact amount appropriated at the 
same time to provide for intercourse between the 
United States and foreign nations. Evidently Morris, 
Cabot, and Ellsworth had proposed the Senate 
amendment to the House bill in order to make the 
appropriation coincide in amount with the sum 
fixed by the Senate as the limit for the preliminary 
payment. That the money was for this purpose 
cannot be doubted, for Jefferson in a subsequent 
report to Congress stated: 

In orc'er to enable the President to effect the objects 
of this (Senate) resolution, the Legislature, by theii* act 
of May 8th, 1792, c. 41, Sec. 3, appropriated a sum of 
fifty thousand dollars to defray any expense which might 
be incurred in relation to the intercourse between the 
United States and foreign nations.^ 

It is evident that in this transaction the Senate 
failed to maintain the position it had assumed. 
The point at issue was this: Has the President, 
upon the advice of the Senate, constitutional au- 
thority to draw money from the treasury or to 
borrow it on the credit of the United States in order 
to make the first payment on a treaty which he 
negotiates with the advice and consent of the 
Senate? And if so, is it the constitutional duty of 
Congress subsequently to appropriate the money so 
spent? The Senate answered both questions in 
the affirmative. The President and his Secretary 
of State seem not to have expressed any cate- 
gorical opinion upon the abstract question; but 

^ Atn. Slate Papers, For. Rels., I. 290. 



THE TREATIES WITH ALGIERS AND SPAIN 51 

they declined to negotiate the treaty until the ap- 
propriation had been made. How far their position 
was based upon a consideration of the constitu- 
tional powers of the President, and to what degree 
the question of expediency determined their action 
we have no means of knowing. The course followed 
is characteristic of Washington's far-seeing caution 
in constitutional interpretation and in politics. 
Incidently, it left the principle at issue for the de- 
cision of the future. 

The incident is an interesting revelation of the 
mechanics of the machine set up under the influence 
of the check and balance theory of government. 
The treaty-making power had been hard to fit into 
the general system, but finally had been intrusted 
to the executive and a part of the legislature. In 
the early exercise of this power each of these au- 
thorities was determined to assert to the full its 
constitutional rights. Yet each hesitated to ex- 
ceed its authority lest it should find itself in active 
conflict with the other or with the House of Repre- 
sentatives. Thus political forces tended to keep 
each agent within the sphere of its legal competence, 
while at the same time, also as a matter of practical 
politics, each participated to some degree in per- 
forming a function which lay without that sphere. 
This interaction is inevitable in many phases of 
governmental activity, but in none, perhaps, is 
it more so than in the making of treaties which also 
are laws. 

During the three years of negotiation which 
followed, the President, in his annual and special 
messages to Congress, continued to keep the Senate 



52 THE SENATE AND TREATIES 

and the House equally informed of the progress of 
the negotiation. Whatever information he sent to 
the Senate he submitted also to the Representatives, 
a course which was in accord with the opinion of 
Jefferson, that when negotiating a treaty which 
would require subsequent legislation, it was good 
policy for the executive to keep in close touch with 
both branches of the legislature/ 

The treaty, which was signed September 15, 1795, 
was transmitted to the Senate on the fifteenth of 
the following February, along with numerous papers 
and documents.- After three days of debate, the 
Senate referred it to a committee composed of 
Ellsworth, Cabot, King, Langdon, and Brown.^ 
Their report estimated the expenditure required by 
the treaty as a sum considerably in excess of that 
previously authorized by the Senate, but at the 
same time recommended ratification.* Action was 
delayed for several days by Senators who ap- 
parently believed that the agreement to pay the 
sums stipulated in naval stores might lead to dif- 
ficulties later. On March 2, however, ratification 
was advised by a very large majority, although a 
subsequent motion to change the form of the reso- 
lution by substituting ''unanimously" for ''two- 
thirds of the Senatoi-s present," failed, 16 to 11.^ 

It will be remembered that on February 22, 1791, 
the Senate had advised the President to secure 

1 Am. State Papers, For. Rels., I. 288-300, 413-422. Richardson 
Messages, I, 148, 152, 176-7. 

- Sen. Exec. Jour., I. 198; Atn. Stale Papers, For. Rels., I. 528- 
532. 

3 Ibid., p. 199. " IbuL, pp. 200-201. 

"5 Sen. Exec. Jour., I. 201-202. 



THE TREATIES WITH ALGIERS AND SPAIN 53 

recognition of the treaty of 1787 with Morocco by 
the new Emperor of that state. Shortly after- 
wards an appropriation of $20,000 for this purpose 
was made by Congress.^ Report of the progress of 
this negotiation was made to Congress m the mes- 
sage of December 16, 1793, concerning both the 
Moroccan and the Algerine questions. After the 
recognition of the treaty had been secured, however, 
it was to the Senate alone that a final report was 
made.2 

THE TREATY OF SAN LORENZO "EL REAL 

Upon the third of March, 1796, the day following 
then- final action on the treaty with Algiers, the 
Senate gave their advice and consent to the rati- 
fication of another convention which was of much 
greater importance to the nation. This was the 
treaty which had been signed at San Lorenzo el 
Real during the preceding October and which pro- 
vided for the settlement of difficulties with bpam 
of thhteen years' standing. The chief points at 
issue concerned the boundary between the southern 
territory of the United States and West Florida, 
commerce between the two countries, and the 
navigation of the lower Mississippi by American 
citizens. Because it abandoned this latter right, or 
privilege, for a term of years the Jay-Gardoqui 
treaty, which was negotiated during the years 
1785 and 1786, was rejected by the Congress of the 

1 U. S. statutes at Large, I. 214 (Acts of 3d Sess. of 1st Cong, 

Stat. Ill, Ch. XVI). ^ . ,. . 

2 For a brief history of the Morocco Treaty, see Davis, Notes 
Upon Foreign Treaties of the United States, pp. 1242-1244. 



54 THE SENATE AND TREATIES 

Confederation. This body finally referred the entire 
matter to the new government under the Consti- 
tution.^ By 1791 the situation had become such 
that the government practically faced the alterna- 
tives of securing the right to navigate the Mississippi 
to its mouth for citizens of the United States or of 
losing the allegiance of the settlers west of the 
Alleghenies and south of the Ohio. The relations 
between Spain and the powerful Indian tribes of 
the southwest increased the tension and it became 
"clear that an agreement or war must come. This 
was as plain to Spain as to Washington and his 
cabinet, and on December 16, 1791, the Spanish 
minister for foreign affairs made known the readi- 
ness of Madrid to negotiate." " 

Early in January, 1792, the President sought the 
advice of the Senate in the matter, by laying be- 
fore them a statement of the facts and asking con- 
formation of the appointment of William Carmichael 
and William Short 'Ho be Commissioners Pleni- 
potentiary . . . for negotiating and concluding a 
convention, or treaty, concerning the navigation of 

1 Jay to Gardoqui, October 17, 1788. A7n. State Papers, For. 
Rels., I. 251. 

2 Chadwick, The Relations of the United States and Spain: Diplo- 
macy, p. 35. Chapters I and II of this work briefly review the 
diplomatic relations between the two countries through the treaty 
of 1795. See also Rives, "Spain and the United States in 1795." 
Anierica7i Historical Review, IV. 62-79, for the diplomacy leading 
up to the treaty, and particularly for an explanation of the reasons 
that led Spain to sign a convention so favorable to the United States. 
See also, Lyman, Diplomacy of the United States, I. vii, for account 
of Spanish American relations, 1777-1814; Moore, Internatioital 
Law Digest, V. 84{)-855; Bassett, The Federalist System, Ch. V.; 
Trescot, The Diplomatic History of the Administrations of Washing- 
ton and Adams, 178{}-1801, Ch. IV. 



THE TREATIES WITH ALGIERS AND SPAIN 55 

the river Mississippi by the citizens of the United 
States; saving to the President and the Senate 
their respective rights as to the ratification of the 
same." ^ After the Senate had confirmed these 
nominations and thereby sanctioned the proposed 
treaty, Spain expressed a desire to extend the 
negotiations to cover all matters considered be- 
tween Jay and Gardoqui in 1785 and 1786, par- 
ticularly the commercial relations between the two 
countries. Jefferson believed that the Senate should 
be consulted before the powers of the American 
commissioners were extended to cover commercial 
matters, and on March 7 the President laid before 
it the proposed additional instructions. In doing so 
he definitely asked the Senate if they would '^ advise 
and consent to the extension of the powers of the 
Commissioners, as proposed, and to the ratification 
of a treaty which shall conform to those instructions, 
should they enter into such a one with that Court." 
The message and the accompanying documents 
were referred to a committee composed of Cabot, 
Morris, and Langdon, and on the following day 
the Secretary of the Treasury was asked to furnish 
the Senate with detailed information concerning 
the imports and exports of the states, individually, 
for one year.^ On March 16 the Senate agreed to 
the proposed extension of powers in a resolution 
which is significant enough to be quoted in full. 
It was as follows: 

Resolved, (two-thirds of the Senators concurring therein,) 
That they advise and consent to the extension of the 
powers of the Commissioners as proposed, and that they 

1 Sen. Exec. Jour., I. 9.5-96. ^ i^^i^t., pp. 106-110. 



56 THE SENATE AND TREATIES 

will advise and consent to the ratification of such treaty 
as the said Commissioners shall enter into with the Court 
of Spain, in conformity to those instructions.^ . 

It should be noted that this resolution explicitly 
binds the Senate to agree to the ratification , of a 
treaty concluded in conformity with the instruc- 
tions which they had approved. 

Two days after the Senate had consented to the 
extension of the scope of the negotiation, Jefferson 
submitted to Washington his instructions to the 
commissioners. These instructions deal with three 
subjects, — boundary, the navigation of the Mis- 
sissippi, and commerce. Those given on the latter 
subject are verbatim as assented to by the Senate.- 
The instructions upon boundaries and the naviga- 
tion of the Mississippi never had been laid before 
that body, however. This inconsistency in pro- 
cedure shows to what extent Washington and the 
Senate transacted the business of treaty-making 
along the lines indicated by political convenience or 
necessity. 

Spanish procrastination and ''new combinations 
among the powers of Europe" having delayed the 
conclusion of the treaty for more than two years, 
Washington on November 21, 1794, nominated 
Thomas Pinckney, then Minister of the United 
States at the Court of St. James, as envoy extraor- 
dinary to conclude the negotiations. The terms in 
which Pinckney was nominated define his mission 
as identical with that with which Short and Car- 
michael had been charged, and later, m submitting 

1 Sen. Exec. Jour., I. 115. 

2 Am. State Papeis, For. Rels., I. 252-257. 



THE TREATIES WITH ALGIERS AND SPAIN 57 

the treaty which he signed, the President informed 
the Senate that it had been negotiated under the 
original instructions to the earher envoys, sup- 
plemented by a l^ter instruction on the subject of 
spoliation claims.^ On February 26, 1796, the 
Senate unanimously gave its advice and, consent to 
the ratification of the treaty.^ 

1 Am. State Papers, For. Rels., I. 533; Sen. Exec. Jour., I. 200. 

2 Sen. Exec. Jour., I. 200, 201, 203. A motion to "insert the 
word 'unanimously' instead of the words 'two-thirds of the Senators- 
present,'" failed, 11 to 16. 



CHAPTER IV 

The Jay Treaty 

While the President and the Senate were working 
out the treaties thus far considered, they were also 
engaged, along with the House of Representatives^ 
in the solution of the paramount problem of the 
early foreign affairs of the United States, that of 
our relations with Great Britain. The heritage of 
trouble arising out of the treaty of peace of 1783 
which descended to the new federal government is 
too well understood to require discussion here, as 
are the subsequent events which finally presented 
to Washington's government the alternatives of 
concluding a treaty of some sort or of going to war 
with England.^ The manner in which the Senate 
performed its part in Anglo-American affairs from 
1790 to 1796, and the relations of the President 
with both Houses of Congress in the solution of 
the British problem are of* primary importance,, 
however, in the study of the exercise of the treaty- 
making powers of the Senate. 

1 Moore, International Law Digest, V. 699-707; Lyman, Diplo- 
macy of the United States, I. xi., traces Anglo-American relations 
from 1783 through this treaty; Rankin, The Treatij of Comity, Com- 
merce and Navigation Between Great Britain and the United States, 
1794. Bassett, The Federalist Systefn, Chs. IV, VIII; McMaster, 
History of the People of the United States, II. viii, xi; Foster, 
A Century of American Diplomacy, Ch. V; Trescot, Diplomatic 
History, Ch. 11. 

58 



THE JAY TREATY 59 

The question of British-American relations was 
first formally presented to the Senate on February 9, 
1790, when Washington asked their advice as to 
the best method of settling the old dispute over the 
northeast boundary. The message states: 

A plan for deciding this difference was laid before the 
late Congress; and whether that, or some other plan of 
a like kind, would not now be eligible, is submitted to 
your consideration. 

In my opinion it is desirable that all questions between 
this and other nations should be speedily and amicably 
settled; and in this instance, I think it advisable to post- 
pone any negotiations on the subject, until I shall be 
informed of the result of your deliberations, and receive 
your advice as to the propositions most proper to be 
offered on the part of the United States. 

As I am taking measures for determining the inten- 
tions of Great Britain respecting the further detention 
of our posts, ^ etc., I am the more solicitous that the 
business now submitted to you may be prepared for 
negotiation, as soon as the other important affairs which 
engage your attention will permit.^ 

This message is characteristic of the early attitude 
of Washington towards the Senate as a council of 
advice in foreign affairs. It was referred, with the 
accompanying documents, to a committee composed 
of Strong, Butler, Patterson, Hawkins, and John- 
son,^ as was another communication on the subject 
subsequently received from Governor Hancock of 
Massachusetts.^ Acting in accordance with the re- 

^ This refers to the mission of Gouverneur Morris. 
2 Sen. Exec. Jour., I. 36-37; Am. State Papers, For. Rels., I. 90- 
99. 

^ Sen. Exec. Jour., I. 40. 

^ Ibid., pp. 40-.41; Am. State Papers, For. Rels., I. 99. 



60 THE SENATE AND TEEATIES 

port of this committee, the Senate advised that 
effectual measures should be taken to settle the 
dispute over the line. They suggested that the 
case first be' presented to Great Britain, and that if 
other methods of amicable settlement failed, the 
disputes be referred to commissioners for decision 
in the manner advised by Jay in 1785 in the report 
which had been submitted to the Senate with the 
message of February 9.^ The advice of the Senate 
seems to have been followed by no immediate 
action. It is interesting to note, however, that 
Article V of the Jay treaty provides for the decision 
of the St. Croix River boundary practically in the 
manner here recommended. 

The mission of Gouverneur Morris, to which 
Washington had referred in his first message to the 
Senate, had disclosed the attitude of the British 
ministry towards the question at issue between the 
two countries. On February 14, 1791, the House 
was briefly informed that by informal conferences 
it had been ascertained that England was not dis- 
posed to enter into any arrangements merely com- 
mercial. ^ On the same day Washington put the 
Senate in full possession of the facts concerning 
Morris's mission, laying before them his instruc- 
tions and reports.^ Morris had been commissioned 
to prepare the way for a fulfillment of the treaty 
of 1783, to sound the ministry on the subject of a 
commercial convention, and to urge the sending 
of a British minister to the United States. The 

^ Sen. Exec. Jour., I. 41-42. 

2 Richardson, Messages, I. 96. 

3 Ibid.; Am. Stale Papers, For Rels., I. 121-127. 



THE JAY TEEATY 61 

results of the mission were reported as being un- 
satisfactory with reference to the first two of its 
objects. Morris had been assured, however, that 
the government would send a diplomatic represen- 
tative to this country, and in October, 1791, George 
Hammond was received as minister from the Court 
of St. James. ^ 

Hammond, however, had no authority to negotiate 
a settlement of any of the points at issue, and during 
the next three years the new republic and the ancient 
kingdom drifted steadily towards war. The old 
disputes were made more bitter by the addition of 
several grievances particularly galling to the United 
States. One of these grew out of the continued re- 
tention by the British of the border posts, which 
they now used as points of vantage from which to 
incite the Indians against the settlers in the western 
territory.^ Friction arose from the destruction of 
American commerce and the impressment of Ameri- 
can seamen as an incident of the war between Great 
Britain and France. Then, too, many citizens, 
particularly among those who hated England and 
loved France, blamed the British for the renewed 
depredations of the Algerine pirates on our Mediter- 
ranean commerce. Public feeling was aroused to a 
pitch that is unknown in the United States to-day. 

During this period Washington kept both houses 
of Congress well informed of developments. In 
February he laid before the legislature dispatches 

^ Foster, A Century of American Diplomacy, p. 159. 

2 See McLaughlin, "Western Posts an4 British Debts," in 
American Historical Association Report, 1894; also McLaughlin, 
The Confederation and the Constitution, Ch. VI. 



62 THE SENATE AND TREATIES 

from Pinckney which indicated that the British 
government had small intention of hastening a 
settlement. Correspondence between Randolph and 
Hammond, likewise submitted, showed that no 
progress had been made in the negotiations proposed 
to be carried on at Philadelphia.^ In the mean- 
time Jefferson's long-expected commercial report 
recommending reprisals against those European 
nations which subjected American shipping to 
harsh regulations had been laid before Congress. - 
The House had responded by receiving favorably 
Madison's resolutions proposing retaliatory measures 
toward Great Britain.^ At the same time the ad- 
mmistration was preparing for eventualities by 
proposing to provide for the fortification of harbors, 
the increase of the navy, and the strengthening of 
the army. The anti-English party in the country and 
in Congress seemed to be preparing to meet Great 
Britain more than halfway on the road to war. 

Early in March it was realized that matters were 
approaching a crisis. Washington's face was set 
against war with England, however, and at this 
juncture a small group of the most influential mem- 
bers of the Senate came forward with a plan once 
more to substitute negotiations for hostilities. 
The extent to which this group of Federalist Sena- 
tors were responsible for the Jay treaty, the cir- 
cumstances in which they worked to secure theu' 
ends, and the manner m which Senate procedure 

1 ylm. State Papers, For. Rels., I. 327-328. 

2 Annals of Congress, 1793-1795, p. 152. 

^ These resolutions were introduced January 3, 1794. Ibid., 
p. 155 et. seq. 



THE JAY TREATY 63 

was adapted to meet their needs show that on the 
first occasion upon which the treaty-making power 
was the point of stress in a national crisis, it was 
exercised not in accordance with any a 'priori theory 
but as the necessities of the moment demanded. 
And the action of the Senate upon this treaty during 
the stages which preceded its signature, more 
closely approximates modern practice than does 
that taken upon any other treaty during the first 
decade of government under. the Constitution. 

Oliver Ellsworth of Connecticut, George Cabot 
and Caleb Strong of Massachusetts, and Rufus 
King of New York were the four Senators who, to a 
great extent, were responsible for the Jay mission. 
With them was associated Robert Morris of Pemi- 
sylvania. Federalists all, they were the backbone 
of the administration party in the Senate. Five 
more powerful men could not be selected from the 
Senators of that period. The fact that they were 
accustomed to working together and with Washing- 
ton and his chief advisers made them an effective 
unit. Investigation reveals that they were more in- 
fluential than any other members of the upper 
house in determining the action of that body in 
foreign affairs during the whole of Washington's 
administrations . 

The time at which these men, or any of them, 
began to consider the possibility of a British mission 
has not been ascertained. There is reliable evidence, 
however, that early in March some such plan was 
well advanced.^ By March 10 the project was so 

1 Brown, Life of Oliver Ellsworth, pp. 213-214. Here is given 
an excellent account of Ellsworth's activity in connection with the 



64 THE SENATE AND TREATIES 

well matured that the leaders in the movement met 
in King's room to consider what action should be 
taken in the emergency caused by the capture and 
condemnation of American vessels in the West 
Indies. What transpired at this meeting is best 
told in the words of Rufus King himself. Under 
date of March 10, he wrote :^ 

The order of Britain of the 6th Nov., authorizing the 
seizing and sending in of American vessels for adjudica- 
tion, having produced by the great number of captures 
in the West Indies, the most alarming irritation in the 
middle and eastern states (more than 200 sail having 
been taken and nearly half that number having been 
condemned), the faction opposed to the government 
having taken hold of the circumstances to embarrass 
and derange the administration — Ellsworth, Cabot and 
Strong met at my room in order to confer on the course 
most advisable to pursue. 

The Result was that Ellsworth should go the next 
day to the President, that he should represent to him 
that the crisis was alarming; that war might and prob- 
ably would be the consequence of these aggressions of 
England, unless some system calculated to calm the public 

Jay treaty. A detailed account of the genesis of the Jay mission is 
given in Hamilton, History of the Republic of the United States of 
America, V. cviii, civ. The author views the entire transaction 
largely from Hamilton's viewpoint, but his statements are based on 
contemporaneous sources, in part on the manuscript of Rufus 
King, to which reference is made below. Reference also is made to 
Lodge, Life and Letters of George Cabot, Chs. HI, IV, where Cabot's 
career in the Senate is traced; to an essay, " Oliver Ellsworth," by the 
same author, in, A Fighting Frigate and Other Essays and Addresses, 
pp. 8&-89; and to Gibbs, Memoirs of the Adnnnistrations of Wash- 
ington and John Adams, I. V. Here appears original material in 
the form of letters to and from Oliver Wolcott. 

^ Rufus King's manuscript, a contemporary diary or record 
written by King and published in Charles R. King, Life and Cor- 
respondence of Rxtfus King, I. .517-519. 



THE JAY TREATY 65 

mind, as well as the public councils, was speedily adopted 

— to avoid that scourge and to save the national honor^. 
as well as to procure indemnification for the wrongs that 
our merchants had already suffered. . . . 

Ellsworth then was to suggest the adoption of 
vigorous measures for defense, the sending of an 
agent to the West Indies to report on the situation 
there, and 

that further an envoy extraordinary should be appointed 
and sent to England to require satisfaction for the loss 
of our Property and to adjust these points which menaced 
a war between the two countries. 

Hamilton was to be suggested as the man most 
likely to succeed on such a mission.^ 

How Ellsworth fared with the President is recorded 
in King's diary for March 12, as follows: 

Ellsworth executed the mission agreed on upon the 
10th instant. The President was at first reserved — 
finally more communicative and apparently impressed 
with Ellsworth's representation. Some doubts were 
suggested respecting the character — that Col. Hamilton 
did not possess the general confidence of the country — 
that there could be no doubts in his, the President's 
mind but that their existence was of some consequence .^ 

On this same day King "intimated to R. Morris 
the purport of Ellsworth's mission to the President 

— and proposed that he should, if occasion offered, 
support it — he consented to do so." ^ Morris 
kept his word and lent his powerful influence to 
secure negotiation as a substitute for war. And 
during the next month the proposition advanced 

' Life and Correspondence of Rufus King, I. 517-519. 
2 Ibid. 3 ji^id. 



66 THE SENATE AND TREATIES 

by Ellsworth and his colleagues needed all the 
support that it could command. The whole project 
of a mission was bitterly assailed by all Republicans 
and many Federalists. Furthermore, Washington 
had unerringly divined the weakness of Hamilton 
in the role of envoy to England. The proposal to 
nominate him raised such a storm of protest that 
finally it became evident that from a political 
standpoint, his appointment was impossible. On 
April 8 Washington told Morris that he had thought 
of the Vice-President, Hamilton, Jay and Jefferson 
for the task.^ The attitude of the five Senators 
seems to have been, Hamilton if possible, if not, 
then Jay.^ Together with Hamilton they finally ac- 
quiesced in the selection of the Chief Justice, and 

1 Life and Correspondence of Rufus King, I., p. 519. 

2 "Ap. 12. Mr. Jay arrived to hold a circuit Court in Phila. — 
he came to my room, the conversation soon turned to the present 
situation of the Country. I told him that the object of the Friends 
of peace was such as was agreed between Ellsworth, Cabot, Strong 
and myself on the 10. Mar.; that I had heard from the Pr. had 
mentioned the Vice President, Hamilton, Jefferson and him as 
persons whom he had thought of for the Envoyship; that his friends 
were decided that it must be him or Hamilton. 

That so far as regarded the particular knowledge of the Cabinet, 
and the details of Commerce, Hamilton might deserve a preference. 
But that in other respects we should be perfectly satisfied with 
him; that these points were not very important, and if on the other 
hand, we consider weight of character abroad as well as at home, 
his appointment might be more advantageous than that of Hamilton. 
Besides that Hamilton was essential in his present station. Mr. 
Jay gave no Reply respecting himself but appeared fully to agree 
in the Propriety of Hamilton's appointment. 

" We conversed respecting the Resolution before the House for 
cutting off commercial intercourse and set^ucstering British Debts. 
He joined me in opinion that they would frustrate all negotiations 
and said he .should tell tlie President so when he saw him." Ibid. 



THE JAY TREATY 67 

on the fourteenth, Hamilton addressed a long letter 
to Washington urging the necessity of the mission, 
setting forth the dangerous character of the House 
propositions for commercial and other reprisals, 
withdrawing his name from consideration, and urg- 
ing the appointment of Jay.^ Thus it was decided 
that Jay should be the envoy. King records that 
on April 15 Hamilton, Strong, Cabot, Ellsworth, 
and himself waited upon the Chief Justice to urge 
his acceptance of the post.^ That night in a very 
grave letter Jay informed his wife that there was 
''here a serious determination to send me to England, 
if possible to avert a war." And he declared that 
if on investigation he should be convinced that it 
was his duty to go he would accept the appointment.^ 

1 The Works of Alexander Hamilton, V. 97-115; also, Hamilton 
History of the Republic, V. 544^554 

2 King wrote, "Hamilton, Strong, Cabot, Ellsworth and myself 
went to Mr. Jay this afternoon to press upon him the necessity 
which exists that he should not decline the Envoyship; that in 
short he was the only man in whom we could confide, and that we 
deemed the situation of the Country too interesting and critical 
to permit him to hesitate. 

"He did not decline. We urged the idea that he should reinforce 
the opinion that the measures before the House wd. disappoint the 
objects sought for in the appointment — and that he could not 
consent to be Envoy charged with complaint and menace." Life 
and Correspondence of Rufus King, I. 520. 

3 The gravity of the situation at this time is strikingly shown 
by two letters from John Jay to his wife. On April 9 he wrote: 
"I arrived here on Monday evening, and yesterday dined with the 
President. The question of war or peace seems to be as much in 
suspension here ^ as in New York when I left you. I am rather 
inclined to think that peace will continue, but should not be sur- 
prised if war should take place. In the present state of things, it will 
be best to be ready for the latter event in every respect." 

And on April 10: "The aspect of the times is such, that prudential 
arrangements calculated on the prospect of war should not be 



68 THE SENATE AND TREATIES 

Consideration over night evidently convinced him 
that he should do so, for on the following day 
Ohver Ellsworth wrote to his friend Oliver Wolcott, 
saying that Jaj'' had just informed him of his de- 
termination to accept the appointment if it should 
be made.^ 

In the meantime Washington had decided upon his 
course of action. On the evening of the fourteenth 
he had requested Randolph to draw up a message 
to submit the plan and the nomination to the Senate. 
Early the following morning he asked if the docu- 
ment would be ready by 11 o'clock in order that it 
might be laid before ''the gentlemen with whom I 
usually advise on these occasions." ^ Twenty-four 

neglected, nor too long postponed. Peace or war appears to me 
a question which cannot be solved. . . . There is much irritation 
and agitation in this town, and in Congress. Great Britain has 
acted unwisely and unjustly; and there is some danger of our acting 
intemperately." Correspondence and Public Papers of John Jay, 
IV. 2, 3. 

1 Ellsworth to Oliver Wolcott, April 16, 1794. Gibbs, Memoirs 
of the Administrations of Washington and Adams, I. 135. 

2 Washington-Randolph, April 15, 1794, Washington's Writings 
XII. 419. It is interesting to note that at this moment Washington 
was considering laying before the Senate the outline of the entire 
plan of action which he thought it would become necessary to 
follow should the Jay mission fail. Continuing in his letter to 
Randolph, he said: "My objects are, to prevent a war, if justice 
can be obtained by fair and strong representations (to be made by 
a special envoy) of the injuries which this country has sustained 
from Great Britain in various ways, to put it in a complete state 
of military defence, and to provide eventually for such measures as 
seem now to be pending iu Congress for execution, if negotiation 
in a reasonable time proves unsuccessful. 

"Such is the train of my thoughts; but how far all, or any of 
them, except the first, ought to be introduced into the message, in 
the present stage of the business in Congress, deserves, as I have 
said before, due consideration." The message sent in on the day 



THE JAY TEEATY 69 

hours later, April 16, 1794, the message nominating 
Jay as Envoy Extraordinary of the United States 
to his Britannic Majesty was sent to the Senate.^ 
The President had done his part towards carrying 
out the plan suggested by the five Senators. It 
now remained for them to secure the consent of 
their colleagues to the mission. This proved to be 
a task as interesting as it was difficult. 

The minority in the Senate based their opposition 
to confirmation upon three grounds. They main- 
tained: first, that it was unnecessary and inex- 
pedient to dispatch an envoy extraordinary to 
carry on a negotiation that could be as well or 
better conducted by Thomas Pinckney, Minister of 
the United States at London; second, that the 
Chief Justice of the United States should not be 

following was limited to the subject of negotiation and the nomi- 
nation of Jay as envoy. Ibid. 

1 The Message was as follows: "Gentlemen of the Senate: The 
communications which I have made to you during your present 
session, from the despatches of our Minister in London, contain a 
serious aspect of our affairs with Great Britain. But as peace 
ought to be pursued with unremitted zeal, before the last resource, 
which has so often been the scourge of nations, and cannot fail to 
check the advanced prosperity of the United States, is contemplated; 
I have thought proper to nominate, and do hereby nominate, 
John Jay, as Envoy Extraordinary of the United States, to his 
Britannic Majesty. 

"My confidence in our Minister Plenipotentiary at London, 
continues undiminished. But a mission like this, while it cor- 
responds with the solemnity of the occasion, will announce to the 
world the solicitude for a friendly adjustment of our complaints, 
and a reluctance to hostility. Going immediately from the United 
States, such an Envoy will carry with him a full knowledge of the 
existing temper and sensibiUties of our country, and will thus be 
taught to vindicate our rights with firmness, and to cultivate peace 
with sincerity." Sen. Exec. Jour., I. 150. 



70 THE SENATE AND TREATIES 

sent to negotiate a treaty which might later come 
before him for judicial consideration;^ third, that 
John Jay held opinions against the interest and just 
claims of his country which rendered it unwise to 
entrust to him the task of securing justice from Great 
Britain. 2 Thus the Senate debated and passed not 
only upon the choice of the envoy but also upon 
the expediency of the mission itself. 

It did not, however, have an opportunity either 
to approve or to disapprove of the proposals which 
Jay was to make to England, although the pre- 
cedents might have led it to expect that his instruc- 
tions would be laid before it. On April 16 King 
wrote, ''From the difficulty of passing particular 
instructions in the Senate, it seems to me the most 
suitable that the Pr. shd. instruct, and that the 

1 The final attempt to prevent or delay the confirmation of Jay's 
nomination was made by the introduction of a motion by Burr to 
postpone its consideration for the purpose of considering the fol- 
lowing: 

"Resolved, That any communications to be made to the Court 
of Great Britain may be made through our Minister now at that 
Court, with an equal facihty and effect, and at much less expense, 
than by an Envoy Extraordinary; and that such an appointment 
is at present inexpedient and unnecessary. 

"That to permit .Judges of the Supreme Court to hold at the same 
time any other office or employment, emanating from and holden 
at the pleasure of the Executive, is contrary to the spirit of the 
Constitution, and, as tending to expose them to the influence of the 
Executive is mischievous and impolitic." This motion failed 10 
to 17. Sen. Exec. Jour., I. 152. Also Life and Correspondence of 
Rufus King, I. 522. 

2 Ldfe and Correspondence of Rufus King, I. 521; Sen. Exec. 
Jour., I. 150-153; Hamilton, History of the Republic, V. cv., Trescot, 
Diplomatic Hislorrj of the Administrations of Washinqlon and Adams, 
pp. 101-105, gives an excellent discussion of the objections raised 
to the choice of Jay for this mission. 



THE JAY TKEATY 71 

Treaty shd. be concluded subject to the approba- 
tion of the Senate." ^ FederaUst leaders were not 
unprepared then when, on the day following, a 
motion was introduced. 

That previous to going into the nomination of a special 
Envoy to the Court of Great Britain, the President of 
the United States be requested to inform the Senate of 
the whole business with which the proposed Envoy is 
to be charged. 

They promptly secured the rejection of the propo- 
sition.2 

The feeling which then existed both in and out 
of Congress was such that the ^'difficulty of passing 
particular instructions in the Senate" certainly 
would have been great. Indeed it is unlikely that 
the Senate could have been brought to agree to any 
detailed plan that Washington and his advisers 
might have submitted. In these circumstances it 
was evidently recognized that if the Senate was 
to serve as a "council of advice" in such a delicate 
matter it must be through a small number of its 
members in whom both the executive and a majority 
of their colleagues had great confidence. In later 
years this became the normal mode of procedure. 
The significance of the precedent set in this instance 
will be discussed more fully in connection with the 
ratification of the treaty. 

After three days of discussion Jay's nomination 
was confirmed.^ The minority attempted without 
success to obtain the passage of a resolution that in 
executive business the minority on any question 

1 Life and Correspondence of Rufus King, I. 521. 

2 Sen. Exec. Jour., I. 151. ^ ji^id^^ j 152. 



72 THE SENATE AND TREATIES 

might enter their objections in the journals.^ It 
will be remembered that a smiilar resolution in- 
troduced at the time of the confirmation of the Creek 
Y treaty of 1790 failed.^ 
V It now remained to instruct the envoy and to 

Vv dispatch hmi to England. In this phase of the 
n5 'fei business the Senatorial group still exercised a power- 
~% ful if not a predominant influence. King's diary 
S records under date of April 21 that Hamilton, 
- Ellsworth, Cabot, and he met with Jay to discuss 
the subject. 

All agreed that as the Pr. might give the instructions 
without consulting the Senate, it would be most advisable 
so to conduct the business, and that the Treaty, if any 
shd. be formed, should be signed subject to the approba- 
tion of the Senate.^ 

The question of spoliations on American commerce 
and that of the execution of the old treaty were 
considered, as, indeed, was the entire field of the 
proposed negotiation. In King's words, 

Various propositions relative to a commercial Treaty, 
the posts, the Indian trade, the navigation of the Lakes, the 

West Indies, etc., etc., were also discussed — and Mr. 

stated his conversation with the Secretary of State who 
appeared disposed to leave the negotiation open and the 
powers of the envoy very discretionary.^ 

1 Sen. Exec. Jour., I. 152, 153. 2 gge p. 29 above. 

3 Life and Correspondence of Rufus King, I. 523. 

This general principle was the one acted upon by Randolph in 
framing the instructions, part VI. of which contains the following 
words: You will therefore consider the ideas, herein expressed, as 
amounting to recommendations only, which in your discretion you 
may modify, as seems most beneficial to the United States, except 
in the two following cases, which are immutable." Then follow 
references to his instructions on the relations of the United States 



THE JAY TEE AT Y 73 

It is not unlikely that other informal conferences 
were held between the leaders of the Senate and 
executive officials before the instructions which 
Randolph handed to Jay, May 6, were finally com- 
pleted. Hamilton hunself had a large part in 
drafting the instructions, and before Jay's departure 
submitted his views to him very fully in a long 
letter covering many of the most important problems 
to be solved.^ The entire procedure, certainly, is 
very similar to that by which it later became cus- 
tomary to consult the Senate through the Committee 
on Foreign Relations before any important negotia- 
tion was embarked upon.^ 

to France, and on a commercial treaty. Am. State Papers, For. 
Rels., I. 474. 

Hamilton's low opinion of these instructions and the degree to 
which the senatorial group depended upon the inclination and 
abihty of Jay to carry out the measures upon which they had agreed 
is strikingly exhibited by the following paragraph in a letter written 
to Washington after the signature of the treaty: "I mentioned as 
my opinion that the instructions to Mr. Jay, if published, would do 
harm. The truth, unfortunately, is that it is in general a crude 
mass, which will do no credit to the administration. This was my 
impression of it at the time, but the delicacy of attempting too much 
reformation in the work of another head of department, the hurry 
of the moment; and a great confidence in the person sent, pre- 
vented my attempting that reformation. Hamilton to Washington, 
March 28, 1796. Works of Alexander Hamilton, X. 152-153. 

As a member of the cabinet, however, Hamilton had a part in 
drawing up these instructions, submitting memorandums of points 
to be included in them, and partial drafts upon the commercial 
sections to Washington and Randolph. Hamilton to Washington, 
April 23, 1794; HamUton to Randolph, April 27, 1794; Draft of 
part of instructions to Jay. Ibid., V. 115-123; See also, Hamilton, 
History of the Republic, VI. cxvii. 

^ Hamilton to Jay, May 6, 1794. Works of Alexander Hamilton, 
V. 123-128. 

2 It is pointed out by Wilham Garrott Brown that on November 
19, the day upon which the treaty was signed besides letters to 



74 THE SENATE AND TREATIES 

It was in April, 1794, that the Senate finally 
confirmed the nomination of the special envoy. 
Eleven months later, on the seventh of March,. 
1795, the Jay treaty was placed in the hands of 
the President.^ Congress had adjourned four days 
previously. But before the Senators had left Phila- 
delphia Washington had issued a proclamation re- 
questing them to assemble in special session on 
June 8.^ Upon the appointed day he was informed 
that the Senate was ready to receive any communi- 
cations he might care to make, the treaty was 
transmitted, and the fight for ratification was on. 

It is not considered to be within the scope of this 
study to trace in detail the political struggle over 
the Jay treaty either in Congress or out of it. It 
is deemed important, however, to outline the most 
significant steps in the procedure by which the 
Senate finally advised and consented to ratification 
with the condition that the twelfth article be sus- 
pended; to estimate the degree to which the domi- 
nant group of Federalist statesmen were responsible 

Washington and Edmund Randolph, Secretary of State, Jay wrote 
to Hamilton, King, and Ellsworth, maldng a kind of brief report 
to each. Brown, Life of Oliver Ellsworth, 217. Correspondence and 
Public Papers of Jay, IV. 132-149. 

1 McMaster, History of the People, II. 213. 

2 Richardson, Messages, I. 587. Several months later in a letter 
to Monroe relating what had occurred Madison states, "The Treaty 
concluded by him did not arrive until a few days after the 3rd. of 
March which put an end to the last session of Congress. . . . Ac- 
cording to previous notification to the Senators that branch as- 
sembled on the 28th (in) of June, the contents of the Treaty being 
in the meantime impenetrably concealed. I understand it was 
even withheld from the Secretaries of War and the Treasury, that 
is Pickering and Wolcott." Madison to Monroe, December 20 
1795, Writings of James Madison (Hunt edition), VI. 257-258. 



THE JAY TREATY 75 

for this action; to examine the methods by which 
Burr and his associates opposed ratification; and 
to observe the manner in which the Senate at- 
tempted to guard the secrecy of its proceedings. 

The first move of the opponents of ratification 
was an attempt to secure the pubhcation of the treaty 
and the instructions under which it had been nego- 
tiated. For five days after June 8 the contest was 
over this question.^ On the thirteenth the Repub- 
Ucans abandoned this fine of attack and the debate 
was turned to the provisions of the treaty itself.^ 
It soon became evident that the twelfth article was 
the vulnerable point in the product of Jay's en- 
deavors, and on the sixteenth it was agreed that it 
shoald not be taken up until the rest of the treaty 
had been discussed.^ 

It is significant that the proposition to amend the 
treaty by the addition of an article suspending so 
much of this twelfth article as related to the trade 
between the United States and the British West 
Indies originated not from the enemies of the 
treaty but from its friends. It is hardly accurate 
to say that the opposition Senators succeeded in 
striking out this article."* In fact, the suggestion 
that the Senate advise ratification with this condi- 
tion seems to have come from the very group that 
was so largely responsible for the mission itself. 
Before the Senate had convened, Hamilton had 
written to William Bradford, Senator from Rhode 
Island, telling him that the commercial agreement 
in the treaty displeased him and declaring that he 

1 See pp. 88-91 beloiv. ^ Sen. Exec. Jour., I. 181-182. 

3 Ibid., I. 182. * Brown, Life of Oliver Ellsivorth, p. 218. 



76 THE SENATE AND TKEATIES 

preferred a conditional ratification to an unqualified 
acceptance of the instrument.^ Three days after 
the debate had commenced Hamilton also wrote 
to Rufus King advising the same course. ^ On June 
17 a resolution was introduced giving the advice 
and consent of the Senate to ratification, 

on condition that there shall be added to the said treaty 
an article whereby it shall be agreed to suspend the opera- 
tion of so much of the 12th article as respects the trade 
which his said Majesty thereby consents may be carried 
on between the United States and his islands in the West 
Indies in the manner, and on the terms and conditions 
therein specified. 

And the Senate recommend to the President, to pro- 
ceed without delay, to further friendly negotiations with 
his Majesty, on the subject of the said trade, and of the 
terms and conditions in question.^ 

This resolution is said to have been introduced 
by King himself.^ Considering the care with which 
he and his friends controlled every step towards 
the consinnmation of their end, this was probably 
the case. At any rate it formulated the course 
which they had determined to follow. 

After the seventeenth two major moves were made 
to prevent ratification, and in addition there was one 
serious attempt to couple with the recommendation 
of further negotiations on the West India trade 

^ Works of Alexander Hamilton, X. 99. 

^ Ibid., p. 101. See Hamilton, History of the Repiiblic, VI. cxviii, 
for discussion of Hamilton's part in securing the ratification of the 
treaty. 

3 Sen. Exec. Jour., I. 182. 

* King, Life and Correspondence of Rufus King, II. 9-10. The 
author makes this statement in guarded form, and gives no evidence 
to substantiate it. 



THE JAY TREATY 77 

a similar recommendation with reference to com- 
pensation for negroes or other American property ^,^ 
carried away in violation of Article VII of the 
treaty of peace. ^ While the way was being pre- 
pared for these propositions the President at the 
request of the Senate sent in various documents 
bearing upon the treaty.^ 

On the twenty-second Burr introduced the motion 
upon which the real trial of strength between the 
parties was to be made. This motion may be con- 
sidered to express the opinion of at least a large 
number of Senators as to the lengths to which it 
was proper for the Senate to go in advising the 
President to secure specific amendments to a treaty 
by means of new negotiations. Burr moved the 
following resolution: 

That the further consideration of the treaty concluded 
at London, the 19th of November, 1794, be postponed, 
and that it be recommended to the President of the 
United States, to proceed without delay to further friendly 
negotiations with his Britannic Majesty, in order to effect 
alterations in the said treaty, in the following particulars: 

Then followed seven propositions involving the 
amendment or excision of ten articles in the treaty 
as signed.^ The alterations requested represented 

1 Sen. Exec Jour., I. 183. ■ 2 n^^^ 

2 The alterations recommended were as follows: 

"That the 9th, 10th, and 24th articles, and so much of the 25th 
as relates to the shelter of refuge to be given to the armed vessels 
of States or Sovereigns at war with either party be expunged. 

2d art. That no privilege or right be allowed to the settlers or 
traders mentioned in the 2d article, other than those which are 
secured to them by the treaty of 1783, and existing laws. 

3d art. That the third article be expunged, or be so modified 
that the citizens of the United States may have the use of all rivers, 



78 THE SENATE AND TREATIES 

the demands of the anti-administration, anti-British 
party. So far as their practicabihty was concerned, 
the President might as well have been advised to 
secure the cession of Canada to the United States. 
Nevertheless they were supported by the ten Sena- 
tors who acted together in every attack upon the 
treaty. The vote against the adoption of the reso- 
lution was 20 to 10.^ 

But although Burr's proposal was defeated there 
is nothing to indicate that the rejection was not 
based purely upon expediency and not at all upon 
the impropriety of the recommendation that the 
President make a new treaty in accordance with 
the ideas of the Senate. In fact, a resolution of 

ports and places within the territories of His Britannic Majesty 
in North America, in the same manner as his subjects may have 
those of the United States. 

"6th art. That the value of the negroes and other property 
carried away, contrary to the 7th article of the treaty of 1783, 
and the loss and damage sustained to the United States by the detention 
of the posts, be paid for by the British government; the amount to 
be ascertained by the Commissioners who may be appointed to 
liquidate the claims of the British creditors. 

" 12th art. That what relates to the West India trade, and the 
provisions and conditions thereof, of the 12th article, be expunged, 
or be rendered more favorable to the United States, and without 
any restraint on the exportation, in vessels of the United States, 
of any articles, not the growth, produce, or manufacture of the 
said islands of his Britannic Majesty. 

"15th art. That no clause be admitted which may restrain 
the United States from reciprocating benefits by discriqiinating 
between foreign nations in their commercial arrangements, or pre- 
vent them from increasing the tonnage or other duties on British 
vessels, on terms of reciprocity, or in stipulated ratio. 

"21st art. That the subjects of citizens of either party, be not 
restrained from accepting commissions in the army or navy of any 
foreign power." Sen. Exec. Jour., 1. 183-184. 

1 Sen. Exec. Jour., I. 184. 



THE JAY TREATY 79 

similar form had been passed in 1793 in connection 
with General Putnam's treaty with the Wabash 
and IlUnois Indians. ^ The Senate had not been 
formally consulted as to the instructions under 
which Jay acted. It had been so consulted prior 
to the negotiation of other treaties — had been 
treated as a "council" whose advice ought to be 
sought before a treaty was negotiated. Taking 
these facts into consideration, Burr's resolution was 
in full accord with the accepted theory of the posi- 
tion of the Senate in treaty-making. So far as a 
treaty with Great Britain was concerned the adop- 
tion of such a resolution would have made a treaty 
impossible, which of course is the political reason 
which caused the Federalists to reject the proposal. 
It is probable that the passage of this resolution 
would have modified the subsequent development 
and exercise of the treaty-making powers of the 
Senate. Washington might well have considered 
such an act as notice that, in the future, the Senate 
would expect to participate in the determination of 
the conditions under which a proposed treaty would 
be signed; at the very least it would have suggested 
forcibly the expediency of always consulting them 
before opening negotiations. It might also have led 
the Senate to expect such consultation and thus 
have made it easier for Senators or groups of Senators 
to demand it. A legislative body eagerly creates 
and tenaciously clings to precedents which increase 
its power and enhance its dignity and importance. 
At the time Jay's nomination was before them, 
however, the necessities of the situation and the 

^ See above, p. 35. 



80 THE SENATE AND TREATIES 

political influence of the Federalist leaders were 
powerful enough to keep the Senate from demanding 
the instructions which were to be issued to him. 
The same forces were now sufficient to lead the 
Senate to waive for the good of the nation and of 
the Federalist party what it might well have re- 
garded as its established prerogatives. Thus the 
precedent which was established weakened rather 
than strengthened its position in treaty-making. 
The first great treaty under the Constitution had 
been negotiated by the executive alone. Not until 
the signed agreement was laid before it had the 
Senate been formally consulted as to its terms. 
A determined attempt to prevent ratification until 
new negotiations had been attempted along lines 
laid down by the Senate had failed. The course 
adopted by Washington in shifting his relations 
with the Senate in this matter from a basis of 
theory to one of expediency had been justified by 
events and accepted by the Senate. 

On June 24, the day following the rejection of 
Burr's proposal, an attempt was made to add to the 
resolution of advice and consent, the recommenda- 
tion that the President continue negotiations for 
the purpose of securing adequate compensation ifor 
negroes carried off by the British in contravention 
of the treaty of peace. The motion to this effect 
was presented by Jacob Read, Federalist Senator 
from South Carolina, and was seconded by Pierce 
Butler, his Republican colleague.^ It was lost by 
a vote of 12 to 15, Read himself and Humphrey 
Marshall of Kentucky moving from the Federalist 

1 Sen. Exec. Jour., I. 185. 



THE JAY TKEATY 81 

phalanx to vote for the interests of the slave owners. 
It is interesting to note the sectional character of 
this division, every southern Senator except Gunn 
of Georgia voting for the amendment, while Burr, 
Langdon of New Hampshire, and Robinson of 
Vermont cast the only northern votes in favor of 
the proposal.^ The subsequent fate of this propo- 
sition may be mentioned here. On June 25, after 
the Senate had advised the ratification of the treaty, 
James Gunn, the Federalist Senator from Georgia, 
introduced a resolution advising further negotiation 
to obtain compensation for the slaveholders and 
suggesting that in case this should fail the President 
attempt to secure an agreement to submit the claim.s 
to a joint commission. Coupled with it was a para- 
graph declaring the opinion of the Senate to be that 
the negotiation on this subject should be distinct 
from and subsequent to that recommended in their 
resolution of the twenty-fourth respecting the West 
India trade. The Republicans refused to accept the 
resolution with this declaration, and as Henry of 
Maryland was not in the chamber when the final 
vote came, the Federalists lacked one of the twenty 
votes necessary to secure its passage.^ 

After this attempt to care for the interests of the 
slaveholders had failed, the minority made their 
final stand. A resolution was introduced that the 
President be informed that the Senate would not 
consent to the ratification of the treaty for seven 
different reasons which were set forth in detail.^ 

1 Sen. Exec. Jour., I. 185. 2 lUd., pp. 187-189. 

^ The following reasons were stated : 

■'Ist. Because so much of the treaty as was intended to ter- 



82 THE SENATE AND TREATIES 

The object of this resolution probably was to write 
into the record a final and formal statement of the 
grounds upon which the minority opposed the 
treaty. It was promptly voted down. 

The Federalists then exerted their power and 
forced then resolution of the seventeenth to a vote. 
The question was divided and that part of the resolu- 

minate the complaints flowing from the inexecution of the treaty 
of 1783, contains stipulations that were not rightfully or justly 
requirable of the United States, and which are both impohtic and 
injurious to their interests; and because the treaty hath not secured 
that satisfaction from the British government, for the removal of 
negroes in violation of the treaty of 1783, to which the citizens of 
the United States were justty entitled. 

"2nd. Because the rights of individual states are, by the ninth 
article of the treaty, unconstitutionally invaded. 

"3d. Because, however impolitic or unjust it may generally be 
to exercise the power prohibited by the tenth article, yet it rests 
on legislative discretion, and ought not to be proliibited by treaty. 
"4th. Because so much of the treaty as relates to commercial 
arrangements between the parties, wants that reciprocity upon 
which alone such hke arrangements ought to be founded, and will 
operate ruinously to the American commerce and navigation. 

" 5th. Because the treaty prevents the United States from the 
exercise of that control over their commerce and navigation, as 
connected with other nations, which might better the condition of 
their intercourse with friendly nations. 

"6th. Because the treaty asserts a power in the President and 
Senate, to control, and even annihilate the constitutional right 
of the Congress of the United States over their commercial inter- 
course with foreign nations. 

"7th. Because, if the construction of this treaty should not 
produce an infraction of the treaties now subsisting between the 
United States and their allies, it is calculated to excite sensations 
which may not operate beneficially to the United States. 

"Notwithstanding the Senate will not consent to the ratification 
of this treaty, they advise the President of the United States to 
continue his endeavors, by friendly negotiation with his Britannic 
Majesty, to adjust all the real causes of complaint between the 
two nations." Sen. Exec. Jour., I. 185-186. 



THE JAY TREATY 83. 

tion advising and consenting to ratification, provided 
that the twelfth article be amended, was carried by 
the party vote of 20 to 10. The remaining para- 
graph, advising further negotiation on the West 
India trade was then unanimously^ agreed to.^ Thus 
the result of Washington's final effort to avert the 
"scourge of nations" was accepted by the Senate 
with only such modifications as were suggested by 
the leaders of the Federalist party and likely to be 
agreed to by Great Britain. 

The assent of the Senate to conditional ratifica- 
tion at once gave rise to the question of the proper 
procedure to be followed in making the proposed 
additional article a part of the treaty. Republican 
Senators declared that the entire treaty would 
have to be resubmitted to the Senate before rati- 
fication.- On June 29 the President submitted a 
copy of the Senate resolution to the Secretaries of 
State, Treasury, and War, and to the Attorney 
General, together with these two questions: 

First, is or is not that resolution intended to be the 
final act of the Senate; or do they expect, that the new 
article which is proposed shall be submitted to them be- 
fore the treaty takes effect? 

Secondly, does or does not the constitution permit the 
President to ratify the treat}^, without submitting the 
new article, after it shall be agreed to by the British 
King, to the Senate for their further advice and consent? ^ 

" Sen. Exec, Jour., I. 186. 

^ Crandall, Treaties, Their Making and Enforcement (2d ed.) 
p. 81, citing Tazewell to Monroe, .June 27, 1795, MS. Monroe 
Papers, VIII. 951. 

' Written about June 29, 1795, Washington's Writings, XIII, 
59, 60. 



84 THE SENATE AND TREATIES 

The Secretaries and the Attorney General were 
agreed in the opinion that it was unnecessary to 
submit the new article to the Senate.^ Hamilton, 
upon this first consideration of the question at least, 
seems to have taken the other position. Ac- 
customed to rely upon his assistance in weighty 
matters, Washington had requested his advice upon 
the ratification of the treaty even though he was no 
longer in official position ; ^ and in particular had 
asked his opinion as to the proper course to be 
pursued on this point.^ Washington, seriously con- 
sidered Hamilton's advice and as he was leaving 
Philadelphia for Mt. Vernon on July 14, he re- 
quested his former Secretary of the Treasury to 
lay his ideas before Randolph, if, upon mature re- 
flection, he should continue to disagree with the 
position taken by the latter and his colleagues. 
He also informed Randolph of Hamilton's opinion 
and asked him to discuss the subject again with 
the other officers of the government."* There is no 
record that Hamilton further expressed his views 
on this matter either to Washington or to Randolph. 
Possibly he realized that a resubmission would have 
jeopardized the entire treaty and for this reason 
decided to hold his peace. That the opponents of 

1 Washington to Hamilton, July 14, 1795, Ibid., p. 67. 

^ Hamilton's resignation was accepted January 31, 1793. 
McMaster, History of the People, II. 212. 

^ Washington to Hamilton, July 3, 179.5, Washington's Writings 
Xin. Gl-(>;3; Washington to Hamilton, July 13, 1795, Ibid., pp. 
63-67. 

'' Washington to Hamilton, July H, 1795, Washington' s Writ- 
ings, XIII. 67, 



THE JAY TREATY 85 

the administration felt that they had nothing to lose 
and everything to gain by resubmission, explains 
their position upon the constitutional point. Jeffer- 
son, for example, in writing to Tazewell, observed : 

I am not without hope that the operations of the 12th 
article may render a recurrence to the Senate yet neces- 
sary, and so give to the majority an opportunity of cor- 
recting the error into which their exclusion of pubhc 
light has led them.^ 

Whatever may have been Hamilton's ultimate 
opinion, Washington finally acted upon the advice 
of the heads of the departments, and the course 
then laid out has been uniformly followed since 
when the Senate has advised and consented to the 
ratification of treaties under certain conditions, 
usually in the form of definite amendments. Ran- 
dolph admirably expressed the principle upon which 
this action is based. 

The Secretary of State, in his written opinion, on July 
12, argued that, as the final ratification was given by the 
President, and not by the Senate, the action of the Senate, 
even in case it advised and consented unconditionally, 
was taken upon a treaty the completion of which was 
reserved to the President; that the Senate consequently 
might give its advice and consent without having the 
very treaty which was to be ratified before it; that if 
the President should ratify without again consulting 
that body, he would be responsible for the accuracy with 
which its advice was followed; and that if he should 
ratify what had not been advised, the treaty, for that 
very reason, would not be the supreme law of the land, 
and in this lay the security of the Senate. ^ 

1 Jefferson to Tazewell, September 13, 1795, Writings of Thomas 
Jefferson, IX. 308. 

2 Crandall, Treaties, Their Making and Enforcement (2(1 ed.), pp.' 
80-81. Reference to MS. Washington Papers, XXII. 148, 184, 200. 



86 THE SENATE AND TREATIES 

The decision thus made was of vital importance. 
Had it been decided that resubmission to the 
Senate in such circumstances was necessary and 
that when resubmitted a treaty was again hable 
to rejection or amendment, the power of the Senate 
would have been appreciably increased and our 
system of ratification made even more complicated. 

By August 14 Washington finally had made his 
decision that he would follow the advice of the 
Senate and attempt to secure England's ratification 
of the treaty with the twelfth article amended.^ 
This he had no difficulty in doing. Even though 
the business of exchange finally fell into the hands 
of W. A. Deas, who as American charge in the 
absence of Thomas Pinckney seems to have made 
himself unpopular at the British Foreign Office. 
Lord Grenville raised no objection whatever to 
the inclusion of an additional article as required 
by the resolution of the Senate.^ Inasmuch as later 
British foreign ministers protested with more as- 
perity than courtesy against the American custom 
of ratifying treaties conditionally or with amend- 
ments proposed by the Senate, the position taken 
by Lord Grenville upon this occasion is worthy of 
exposition.^ 

In his report of a conference with Grenville on 
the morning of the twenty-third, Deas informed 
Pinckney that upon stating that he 

1 Randolph to Adams, August 14, 1795, M.S. State Department, 
U. S. Ministers, Instructions, III. 24. 

2 Memoirs of John Quincij Adams, I. 122. 

3 Much of the correspondence referred to in this discussion is 
to be found in Trescot, The Diplomalic History of the Adniinis- 
trations of Wdshiiigton and Adtnns, pp. 119-120. 



THE JAY TREATY 87 

was possessed of the President's Ratification of the 
Treaty conformably to the Advice of the Senate and of- 
fering to exchange the same for an equivalent Ratifica- 
tion on the part of this Government, his Lordship observed 
unofficially that he had no reason to think such exchange 
would not take place, but that it would be necessary 
to lay the business before the King for his Determination.^ 

Five days later Deas was able to announce the ex- 
change of ratifications. It is evident that Great 
Britain at this time expressed no disapproval what- 
ever at the modification by the Senate of the treaty 
as signed, for Deas wrote to Pickering that 

Lord Grenville in presenting that [the ratification] on 
the part of their Government expressed the satisfaction 
it afforded the King in giving his assent. You will ob- 
serve from the copy of the British Ratification herein 
enclosed that it corresponds with that of the President.^ 

1 William A. Deas to Secretary of State, October 23, 1795, 
MS. State Department, England, VoL III. 

2 William A. Deas to Secretary of State, October 28, 1795, Ibid. 
It may be observed that the long delay in the promulgation 

of the Jay treaty probably was due to the fact that Deas forwarded to 
the State Department only a copy of the British ratification instead 
of the original. His letter of October 28, announcing the exchange 
of ratifications, is endorsed as having been received at the Depart- 
ment on December 28 . Two months more passed before the treaty 
was proclaimed, during which time the RepubUcans roundly abused 
Washington for his silence on the subject. McMaster, History 
of the People, II. 263. A letter from Pickering to Deas dated 
March 9, 1796, explains the delay as follows : " No original ratification 
having arrived, as expected the President at length directed the 
treaty with Great Britain to be promulgated, on the evidence of its 
ratification by his Majesty contained in your letter of October 28th. 
But the daily expectation of an original, induced the suspension 
of this promulgation until the 29th of February, and the next day 
the treaty was laid before each House of Congress." Pickering 
to Deas, March 9, 1796. MS. State Department, United States 
Ministers, Vol. III. 



88 THE SENATE AND TREATIES 

On February 29, 1796, the President proclaimed 
the treaty without further consultation with the Sen- 
ate upon the form of ratification, and on March 1 
laid it before both Houses of Congress.^ The pro- 
priety and constitutionality of this course seems to 
have been unquestioned at the time. Certainly 
there is no record of any protest from the Senate 
or from individual Senators. 

In the matter of propriety, in fact, the Senate 
had been put in no pleasant position by the action 
of one of its own members. When Washington 
had transmitted the treaty and the documents con- 
nected with it his message had been silent upon the 
subject of secrecy. Neither the treaty itself nor 
the documents were submitted ''in confidence." 
The question at once arose, however, whether the 
Senate should regard the matter as confidential, 
and during the very first session an order was passed 
laying the Senators under an injunction of secrecy 
concerning the communications received from the 
President.- It was further directed that thirty-one 
copies of the treaty be printed, under injunction of 
secrecy, for the use of the Senate. On the following 
day two additional copies were authorized.'^ On the 
twelfth, the opponents of ratification made a deter- 
mined effort to secure the publication of the treaty. 
But on the thirteenth the motion to rescind the reso- 
lution enjoining secrecy was defeated by the strict 
party vote that had marked the divisions on all of 
the important phases of the struggle for ratification.'' 

1 Annals of Congress, 1795-179(5, pp. 48, 394. 

2 Sen. Exec. Jour., I. 178. ^ Ibid. 
* Ibid., i)p. 178, 179, 181. 



THE JAY TREATY 89 

Thus the matter stood until after the final action 
of the Senate on the treaty. 

On June 25 the matter was again brought up by 
Burr, who moved that the resolution of the eighth 
enjoining secrecy upon the Senators be rescinded, 
but that they nevertheless be enjoined not to 
authorize or allow any publication in print of the 
treaty or any article thereof. Ellsworth endeavored, 
unsuccessfully, to substitute for this an order that 
until ratification the question of publication should 
be left solely with the President. Burr's motion 
was then adopted as presented but was at once re- 
considered. On the next day, however, after much 
debate and several divisions a resolution was carried 
removing the injunction of secrecy but forbidding 
the Senators to give out any copy of the treaty or 
of any article thereof.^ 

The action of the Senate in refusing to authorize 
the publication of the treaty or any article thereof 
seems to have come from a feeling among a majority 

^ Sen. Exec. Jour., I. 190, 191, 192. With reference to this action 
Madison wrote to Monroe, December 20, 1795. "The Senate, after 
a few weeks consultation, ratified the Treaty as you have seen. The 
injunction of secrecy was then dissolved by a full House, and quickly 
after restored sub modo, in a thin one. Mr. Mason, disregarding 
the latter vote, sent the Treaty to the press, from whence it flew 
with an electric velocity to every part of the Union." Writings of 
James Madison, VI. 258. This statement overlooks the fact that 
on the twenty-sixth practically the same motion that was recon- 
sidered on the twenty-fifth was again passed, and that it did not 
remove the injunction against allowing the printing of the treaty. 
Some corroboration for Madison's statement about the reconsider- 
ing of the original motion in a thin house may be found in the 
circumstances that reconsideration was had upon motion of King, 
supported by Cabot and that it was ordered that all absent Senators 
be notified of the reconsideration. 



90 THE SENATE AND TREATIES 

of the members that this was a question which 
should be left to the decision of the President.^ 
The pressure from without, however, was too heavy 
to be withstood even by the compact body of thirty 
men. As Oliver Wolcott put it, the permission 
given was found to be equivalent to publication. 
The contents of the mysterious document gradually 
spread abroad,- and after the appearance of an in- 
complete sketch in the Aurora, Senator Stevens T. 
Mason of Virginia sent his copy of the treaty to 
the editor of that newspaper.^ Thus the Senate 
found itself unable to enforce secrecy upon all of 

1 On June 30 Hamilton wrote to Oliver Wolcott, "I find the 
non-publication of the treaty is working as I expected — that is, 
giving much scope to misrepresentation and misapprehension. 
The Senate, I am informed by several members, did not take any step 
towards publication, because they thought it the affair of the Presi- 
dent to do as he thought fit." Hamilton to Wolcott, June 3. Works 
of Alexander Hnmilton, X. 107. 

- On June 12, Pierce Butler, one of the Senators from South 
Carolina, wrote Madison that he would send him by each post a 
sheet of the treaty until he had received the whole. Writings of 
James Madison, VI, 234n. Madison MSS. quoted as source. 
Wolcott, with humor that perhaps is unintentional seems to have 
expressed pretty accurately the attitude of the Senate on the ques- 
tion of publication in a letter written June 25 to his wife in which he 
said, "The Senate have substantially ratified the treaty, though as 
one point is suspended, it may be considered open. I understand 
they have determined not to countenance a publication, though they 
have reserved the right of conversing generally about it. Perhaps 
this will be found equivalent to a publication." Oliver Wolcott to 
Mrs. Wolcott, June 25, 1795. Gibbs, Administrations of Washijigton, 
and Adams, I. 199. Four days later Wolcott wrote to his father 
enclosing a paper which contained the substance of the treaty with 
the comment, "the curiosity of the public and the impossibility 
of keeping absolute secrecj' has induced a compromise, that the 
treaty may be communicated infoi-mally to the public." Oliver 
Wolcott to Oliver Wolcott Sr., Jvuie 29, 1795, Ibid., I. 202. 

» McMaster, History of the People, \l. 216, 



THE JAY TREATY 91 

its members. Nor did it ever take any steps to 
call to account the one who had ignored the in- 
junction laid upon all. The special session was over 
before the act was done. The publication seems to 
have had little political effect, and when Congress 
convened the following December no steps were 
taken to censure the erring Senator from Virginia.^ 

The most significant of the points at which the 
Jay treaty bears upon the development of the treaty- 
making powers of the Senate may be summarized 
in two groups, the first concerning the relation of 
the Senate to the negotiation of the treaty, and the 
second regarding their action in consenting to its 
ratification. 

In the first group may be considered Washington's 
policy in communicating to Congress information 
concerning British- American affairs. Almost from 
the beginning of the government he kept both 
houses of Congress well informed upon the rela- 
tions between this country and England. In a 
number of instances, however, the Senate was given 
more detailed and complete reports of the situation 

^ On May 4, 1796, an article which was explanatory to the third 
article of the treaty of 1794 was signed at Washington by Phineas 
Bond, His Majesty's Charge d' Affaires, and Timothy Pickering, 
Secretary of State. The article provided that nothing in any 
treaty subsequently entered into by either nation with a third 
nation or any Indian tribe should derogate in any manner from 
the rights of passage across the American Canadian border and 
the right to carry on trade across the border as guaranteed by 
Article 3. Great Britain had deemed these rights to be threat- 
ened by Article 8 of the Treaty of Greenville. The additional 
article was sent to the Senate on the day following its signature and 
advice and consent to its ratification was given four days later. 
Sen. Exec. Jour., I. 207. 



92 THE SENATE AND TREATIES 

than were vouchsafed the House, which course has 
become customary. 

Probably the outstanding point in connection 
with the negotiation of the treaty, however, is the 
extent to which a small group of Federalist Senators, 
who were also among Washington's most trusted 
advisers, dominated the entire proceeding. These 
men suggested the mission; they secured its ac- 
ceptance by the President, and practically directed 
the selection of the envoy; they secured his con- 
firmation by the Senate; they sent him out fully 
cognizant with their views as to what sort of a 
treaty should be striven for and under very flexible 
instructions from the Department of State. 

It is also important to remember that this group 
prevailed upon the Senate to approve the general 
purpose of the mission by confirming the nomination 
of the envoy without demanding to be informed 
of and to pass judgment upon the particular in- 
structions under which the negotiation was to be 
carried on. 

Many points in the procedure of the Senate after 
the treaty had been laid before them are worthy 
of note. Again the influence of the same leaders, 
possessing the confidence both of the Senate and of 
the President, was sufficient to control the situation 
and largely determined the action of the Senate 
throughout the session. It was under their in- 
fluence that the Senate consented to the ratification 
of the treaty, only upon condition that the twelfth 
article be amended. It was then decided that such 
conditional ratification was to be considered as 
the final act of the Senate; and that it was not 



THE JAY TREATY 93 

necessary to resubmit the treaty to the Senate 
after their amendments had been accepted by the 
executive and the other signatory power. The 
conditional ratification of the treaty was acceded to 
by England without protest. 

Of much importance was the refusal of the Senate 
to adopt a resolution that the President be requested 
to renegotiate the treaty. This refusal, taken in 
conjunction with its earlier action in voting down a 
resolution demanding Jay's instructions, must have 
confirmed Washington in his conclusion that it was 
both constitutional and expedient to consult the 
Senate through infiuential members during the 
earlier processes of treaty-making, and to seek its 
formal approval of treaties only at the time of rati- 
fication, rather than prior to and during the period 
of negotiation. His experience with the Senate in 
connection with Indian treaties had led him to 
adopt this policy, and, by not challenging it in 
this important instance, the Senate may be con- 
sidered to have sanctioned the practice. 

Finally, by failing to maintain secrecy with 
reference to the treaty, the Senate seemed to justify 
the opinion of Washington that it was not a safe 
repository for diplomatic secrets. This question 
has been a delicate point between the Senate and 
the President at various times since Washington's 
day. 

The participation of the Senate in making the 
Jay treaty illustrates the process by which govern- 
mental powers and institutions are developed. The 
permanent procedure of the Senate for the con- 
sideration of treaties, its relations with the Presi- 



94 THE SENATE AND TREATIES 

dent in this matter, and the exemption of the 
United States from the rule that a nation is ordi- 
narily bound to ratify treaties signed by its pleni- 
potentiaries were largely determined by the course 
followed at this time. Yet not constitutional 
theory but rather the exigencies of national and 
international politics governed the action of all 
parties to the transaction. Thus constitutional pre- 
cedents which in time came to have great weight 
were by-products of the political process. Recog- 
nition of this fact does not decrease the importance 
of the procedure which here was in the making. 
On the contrary, it gives to procedure a living 
quality which it never can possess of itself. 



CHAPTER V 

The Creek Treaty of 1796 

The last important treaty which Washington 
sent to the Senate was that signed with the Creek 
nation at Coleraine June 29, 1796. Six years 
previously a treaty concluded at New York had 
guaranteed to the Creeks all lands within the 
United States to the westward and southward of 
the boundary therein set up between them and the 
State of Georgia.^ But this guarantee was believed 
by most Georgians to be beyond the powers of the 
central government and an infringement upon the 
rights of the state as sovereign over the territory 
in question.- On account of this feeling in Georgia, 
and for other reasons, the treaty had failed to settle 
the Creek question. So, after four years of disorder 
along the frontier, the state legislature in December, 
1794, instructed the Georgia representatives in 
Congress to apply to the federal government to 
make a treaty securing from the Creeks the cession 
of those lands lying beyond the existing boundary 
line and between the Oconee and the Ocmulgee 
rivers.^ Before this request was preferred, the 

1 Am. State Papers, Indian Affairs, I. 82, Art. 5, Treaty, 
August 7, 1790. 

2 Ibid., I. 560, 561. 

^ Phillips, Georgia and State Rights, Ch. II. 

95 



96 THE SENATE AND TREATIES 

Georgia legislature had passed an act authorizing 
the Yazoo land sale and declaring that the state 
possessed the right of preemption of the Creek 
lands. ^ This action on the part of Georgia had 
been called to the attention of Congress by the 
President,- and in pursuance of a resolution of both 
houses an inquiry into the subject had been in- 
stituted.^ Therefore, when the request of Georgia 
was laid before Washington near the end of the 
session in the spring of 1795, it asked for action 
which involved questions affecting the general policy 
to be pursued towards the Creeks, the ultimate 
rights of Georgia over the Indian lands, and, indi- 
rectly, the attitude of the Federal Government 
toward the Yazoo sale. The delicacy of the situa- 
tion and the complexity and importance of the issues 
involved led the President to hold the matter over 
until the eitd of the special session of the Senate 
which was called to consider the Jay treaty. 

On the day following the final action of the 
Senate on this treaty Washington laid the Georgia- 
Creek matter before it. He stated that he had de- 
cided to accede to the request of the state, but with 
the explicit declaration that neither his assent nor 
any treaty which might be made should be con- 
sidered as affecting any question arising under the 
act of sale of the Georgia assembly of January 7, 
1795, and that any cession of Indian claims should 
be made in the language of the treaty of New York. 

1 Phillips, Georgia and Slate Rights, p. 30. The act was signed 
January 7, 179.5. 

- Kichardson, Messages, I. 175. 

3 President's Message, June 25, 1795, Ain. Slate Papers, Indian 
Affairs, I. 500. 



THE CEEEK TREATY OF 1796 97 

It also was to be required that Georgia pay one-half 
of the expense incident to the negotiations. Wash- 
ington further stated that this seemed to be a favor- 
able opportunity to inquire into all of the causes 
of dissatisfaction among the Creeks, and that 

The commissioners for holding the proposed treaty will, 
therefore, be instructed to inquire into the causes of the 
hostilities to which I have referred, and to enter into- 
such reasonable stipulations as will remove them, and 
give permanent peace to those parts of the United States. 

The nomination of three commissioners followed,^ 
and the last act of the special session was their 
unanimous confirmation.- 

Six months later the President laid before the 
Senate the signed treaty.^ Although successful in 
concluding a treaty of peace which proved to be last- 
ing in its effect, the commissioners not only had failed 
to secure the desired cession of land for Georgia, but 
they had included in the treaty provisions which 
aroused the determined opposition of that state. 

Articles three and four provided that the Presi- 
dent should have the power to establish trading or 
military posts in the territory of the Creeks for the 
purpose of preventing the violation of any of the 
provisions or regulations subsisting between the 
parties, and that the Indians should annex to each 
such post a tract of land five miles square and cede 
the same to the United States. It was further 
provided that when such lands were no longer neces- 
sary for the purpose for which they were ceded they 

1 Sen. Exec. Jour., I. 189-190. ^ ji,^,^^^ p_ 192. 

^ Ibid., p. 219; Am. State Papers, Indian Affairs, 1. 586-616, 
for message, treaty, and documents submitted. 



98 THE SENATE AND TREATIES 

should revert to the Indians. At the conclusion of 
the negotiations at Coleraine the three commis- 
sioners whom the State of Georgia had sent to 
attend them prepared a protest against the treaty 
and against the manner in which it had been nego- 
tiated. The fifth of the seven points made was an 
objection to this cession of land to the United States 
without the consent of Georgia. The act was de- 
clared to be in contravention of Section 8 of Article I 
of the Constitution.^ 

The protest of the Georgia commissioners was 
submitted to the Senate along with a voluminous 
record of the negotiations. In all, the documents 
bulked to some forty thousand words. After five 
days spent in going through this mass of material 
the matter was referred to a committee composed of 
Read of South Carolina, Sedgwick of Massachusetts, 
and Ross of Pennsylvania.'- This committee recom- 
mended that the treaty be ratified with the proviso 
that nothing in the third and fourth articles should 
be construed to affect any claim of the State of 
Georgia to the right of preemption in the land 
therein set apart for military or trading posts; "or 
after the Indian rights to the lands adjoining thereto 
shall have been legally extinguished by the State 
of Georgia, to give to the United States without 
the consent of the said State, a right to the soil, or 
the exclusive legislation over the same." ^ 

This report was considered in five separate ex- 
ecutive sessions.^ Then an amendment was intro- 

' Am. State Papers, Indian Affairs, I. 613-014. 

■-• Sen. Exee. .Jour., I. 220-1221. ' Ibid., p. 222. 

* llnd.. i)p. 222. 22.-), 22t). 



THE CREEK TREATY OF 1796 99 

duced striking out of the treaty so much of the 
third and fourth articles as provided for the cession 
of land to the United States.^ The Senate, however, 
was not ready to admit the contentions of Georgia 
to this extent, and the proposed amendment was 
voted down.- The protection of whatever rights 
Georgia had to the land in question was made more 
exphcit, however, by amending the last part of the 
resolution reported by the committee so that it de- 
clared that nothing in the two articles should be 
construed 

to give to the United States, without the consent of the 
said State, any right to the soil, or the exclusive legisla- 
tion over the same, or any other right than that of 
establishing, maintaining and exclusively governing, mili- 
tary and trading posts within the Indian territory men- 
tioned in the said articles as long as the frontier of Georgia 
may require these establishments. 

The advice and consent of the Senate to the rati- 
fication of the treaty was then given with this 
proviso and condition.^ 

Thus the Senate exercised its power in behalf of 
a state which felt that its rights were threatened by 
a treaty concluded by the executive.^ Too much 
significance, however, should not be attached to its 
action in partially upholding the contentions of 
Georgia. There is no evidence that the executive 
opposed the proviso that finally was included in the 
Senate resolution. In fact, the original resolution 

1 Sen. Exec. Jour., I. 227. - Ibid., pp. 229-230. ^ Ibid., pp. 229. 

^ It will be remembered that the treaty of Fort Harmar with 
the Six Nations was not acted upon by the Senate because that body 
feared that it infringed the rights of New York and Massachusetts 
to Indian lands. See pp. 15-16 above. 



100 THE SENATE AND TREATIES 

to protect the rights of Georgia was proposed by a 
committee two of whose three members were ad- 
ministration men. The amendment to nullify the 
Indian cessions completely, which was supported by 
the Georgia senators and seven of their Repubhcan 
friends, was defeated 22 to 9. And that the con- 
ditional ratification finally advised was unsatis- 
factory to the state is shown by the fact that it 
was opposed by both of her senators and by six 
other Southerners. Thus, although the protesting 
state received some concessions from the Senate, 
there is nothing to indicate that it was given any- 
thing more than the executive was wiUing to grant; 
and certainly the condition with which ratification 
was consented to did not materially alter the char- 
acter of the cessions which were protested against.^ 
Upon this occasion, nevertheless, the Senate was 
the forum in which a state was able to appear and 
protest against an alleged invasion of its rights by 
the federal government; and if it did not receive 
all of the relief it asked for, it at least secured a very 
thorough discussion of its case - and a more explicit 
statement of the rights which the original treaty 
had intended to recognize. 

1 The instructions under which the Treaty of Coleraine was 
negotiated are not available. It is not unlikely, however, that in 
providing for the cessions in the form that they^did the commis- 
sioners were acting upon their own responsibility and that the 
executive was glad to have this form modified by the Senate. 

^ The Treaty of Coleraine was considered by the Senate in 
thirteen separate executive sessions, and apparently some of the 
discussions were lengthy. As the treaty was comparatively brief, 
and as no other point seems to have aroused particular opposition, 
it is probable that most of this time was consumed in debating the 
objections of Georgia to the third and fourth paragraphs. 



THE CREEK TREATY OF 1796 101 

THE ADVICE OF THE SENATE UPON THE 
EXECUTION OF TWO TREATIES 

In addition to participating in the negotiation 
and the ratification of treaties, the Senate was 
called upon by Washington to assist in the interpre- 
tation of one treaty and to advise upon the manner 
in which another should be carried out. The first 
instance occurred in 1791. In January of that year 
the President laid before the Senate a representation 
of the Charge d'Affaires of France that acts of 
Congress of 1789 and 1790 imposing an extraordinary 
tonnage on foreign vessels, without excepting those 
of France, were in contravention of Article V of 
the Treaty of Amity and Commerce of 1778. The 
report of the Secretary of State, which accompanied 
the representation, thoroughly discussed the case 
from the viewpoint of American interests, and con- 
cluded by the presentation of three alternative 
courses of action: (1) To insist upon the American 
construction of the article in question, and to ex^ 
plain in friendly terms the difficulties involved in 
the exemption claimed by France. (2) To agree 
with the French interpretation and to modify the 
law accordingly. (3) To waive the matter of right 
and make the amendment as an act of friendship.^ 

The President submitted the report and the 
documents to the consideration of the Senate that 
he might ''be enabled to give to it such answer as 
may best comport with the justice and the interests 
of the United States.^" The message was referred 
to Morris, King, Izard, Strong, and Ellsworth.^ 

1 Sen. Exec. Jour., I. 65 et seq. 2 j^^^^^ pp_ 65-72. » Ibid. 



102 THE SENATE AND TREATIES 

After considering the report of this committee 
during several executive sessions, the Senate ex- 
pressed the opinion that the American interpreta- 
tion of the treaty was correct, and resolved, "That 
the Senate do advise that an answer be given to the 
Court of France, defending, in the most friendly 
manner, this construction in opposition to that 
urged by the said Court." ^ This course was 
adopted by the executive. 

In January, 1797, the President sent to both 
Houses of Congress, in confidence, reports from the 
Departments of State and the Treasury which dis- 
closed the fact that the appropriation made for 
carrying into effect the treaty with Algiers was in- 
adequate for this purpose. $376,505.66 was the 
sum declared to be necessary for complying with the 
terms of the treaty.^ This sum included the cost 
of a frigate not provided for in the agreement, but 
subsequently promised to the Dey. In the Senate 
this message and the accompanying documents were 
referred to a committee composed of Marshall, 
Goodhue, and Tichenor.'^ The committee submitted 
a report, which was adopted, recommending that 
the money should be appropriated,^ and approving 
the agreement to add a frigate to the naval equip- 
ment promised the Dey. Although the message of 
the President was received, discussed, and acted 
upon in executive session, the House bill appropriat- 
ing the money asked for was referred to another 
committee, and passed through the regular legisla- 

' Sen, Exec. Jour., I. 77. 

2 Atn. Slate Papers, For. Rels., X. 55a-558. 

3 Sen. E.x('c. Jour., I. 220. * Ibid., p. 225. 



THE CEEEK TREATY OF 1796 103 

tive procedure.^ The incident illustrates how, even 
at this period, the Senate was developing a special, 
or separate, procedure for matters relating to foreign 
affairs. 

SUMMARY 

A review of Washington's administrations reveals 
several distinct developments in the interpretation 
and application of the treaty-making clause. There 
can be no doubt that from the very beginning the 
Senate exercised to the full the powers in treaty- 
making and in foreign affairs granted to it by the 
Constitution. The Senate of Washington's ad- 
ministrations was a compact body of experienced 
and able statesmen. Foreign affairs and relations 
with the Indian tribes were among the most im- 
portant of the subjects with which the new govern- 
ment had to deal. Through the constant exercise 
of its treaty-making powers the Senate exerted a 
powerful influence in both fields of activity. It ad- 
vised the opening of negotiations, passed upon the 
instructions under which they were to be carried on, 
and in some instances amended or rejected treaties 
already made. Washington made treaties ''by and 
with the advice and consent" of the Senate in a 
sense and to an extent that no later President ever 
has. 

One very important decision reached by the logic 
of events during these eight years, however, was 
that the Senate could not really be a "council of 
advice" to the President in treaty-making. Yet 

1 Annals of Congress, 1796-1797, pp. 1556, 1559, 1587, 1570- 
1571. 



104 THE SENATE AND TREATIES 

evidently both Washington and the Senate originally- 
expected that it would be such a council. The 
personal element in their relations was emphasized 
by the presence of the Secretary of State or the 
Secretary of War, or, in the one instance, of the 
President himself at their deliberations. Washing- 
ton expressed it as his opinion that personal con- 
ferences were indispensably necessary in treaty 
matters, and provision was made for such confer- 
ences. The chief result of the first conference was 
that it was the last. Messages on treaty matters 
came to be transmitted to the Senate by the Presi- 
dent's private secretary, and communications be- 
tween the Senate and the heads of departments 
took on a formal and impersonal tone. Such, in 
fact, came to be the general character of the rela- 
tions between the President and his cabinet, and the 
Senate in the performance of their joint function. 
As the Senate ceased to be consulted as a real 
''council of advice" its activities in that part of 
treaty-making known as the negotiation became less 
important. At first in making treaties both with 
the Indian tribes and with foreign nations the 
President usually secured the advice and consent 
of the Senate to the details of the proposed treaty 
before opening the negotiation. In the end it be- 
came his custom merely to inform the Senate of 
the proposed negotiation upon securing its consent 
to the nomination of the agent, and to submit the 
latter's instructions only with the completed treaty. 
The vast difference between the detailed manner in 
which the advice of the Senate was taken prior to 
the negotiation of the Creek treaty of 1790 and the 



THE CREEK TREATY OF 1796 105 

brief statement in which the President made known 
to them his intention to settle the differences be- 
tween those Indians and the United States in 1796, 
is typical of the change in procedure. The same 
development is illustrated by comparing the re- 
lations of the Senate and the President in making 
the Spanish treaty with the manner in which the 
Jay treaty was made. In the former instance the 
President laid before the Senate a definite, and, as 
to some subjects, a detailed statement of the treaty 
he intended to secure. The Senate agreed to con- 
sent to the ratification of any treaty signed in ac- 
cordance with these propositions. In the latter 
case John Jay was nominated as envoy to England 
to ''adjust our complaints" against that country. 
The Senate was not informed of the particular 
measures he was to take to attain this end, nor 
was it bound to accept the resulting treaty. The 
effect of the change in procedure was to leave the 
President free to negotiate the sort of treaty which 
the necessities of the situation demanded and al- 
lowed, while the Senate retained a like freedom to 
accept, to amend, or to reject the result of his 
efforts. 

The principle of independence, however, if carried 
too far, obviously would have produced an un- 
satisfactory, if not an unworkable, system. But 
along with this method of procedure there de- 
veloped another factor which tended to modify its 
separative effects. This factor was the committee. 
During the period under consideration the develop- 
ment of the committee system with reference to 
foreign affairs was spontaneous and not the result 



106 THE SENATE AND TREATIES 

of conscious effort on the part of the Senate. In 
the case of the Jay treaty, in which a small group 
of Senators secured a reasonable degree of unity 
between the Senate and the President, the essential 
principle of the committee system was applied 
naturally, but informally, perhaps unknowingly. 
The need existed; it was met in the most natural, 
direct, and simple manner. As later developed, the 
committee system became the recognized substi- 
tute for the abandoned practice of personal con- 
sultation between the Senate and the President in 
treaty-making. During these first eight years, 
however, committees were utilized in treaty matters 
primarily to expedite and make more effective the 
work of the Senate in this field, rather than as a 
means of contact between the two parties to the 
treaty-making power. 



CHAPTER VI 

Treaties of the Administration of 
John Adams 

Two of the treaties which came before the Senate 
during the John Adams administration may be con- 
sidered very briefly. The first was the Treaty of 
Peace and Friendship with Tripoh, signed the fourth 
of November, 1796.^ The second was an article ex- 
planatory of the Jay treaty, releasing the com- 
missioners under the fifth article from particularizing 
the latitude and longitude of the River St. Croix.'- 
The Tripolitan treaty was submitted at the end of 
May, 1797, while the explanatory article was re- 
ceived just a year later. The procedure upon the 
two treaties was identical except at one point. 
Each was read and on a subsequent day referred to 
a committee of three; in each case the committee 
reported favorably and the resolution of advice and 
consent was agreed to without a dissenting vote. 
The single difference is that the treaty with Tripoli 
was ordered to be printed immediately after being 
read, while no such order was entered with reference 
to the explanatory article. By this time it had be- 
come the usual custom to order treaties to be printed 

1 Am. State Papers, For. Rels., II. 18; Sen. E.vec. Jour., I. 241, 
244. 

2 Ibid., pp. 278-9. 

107 



108 THE SENATE AND TREATIES 

in confidence for the use of the Senate, although as 
yet the practice was not invariable. 

THE TREATY OF 1797 WITH TUNIS 

On February 21, 1798, the President laid before 
the Senate a treaty of "Peace, Friendship, Commerce 
and Navigation" with the Bey of Tunis.^ This 
treaty had been negotiated for the United States 
by Joseph S. Famin, a French merchant, acting 
under instructions from Joel Barlow, Consul Gen- 
eral at Algiers. It was intended to secure American 
shipping in the Mediterranean from molestation by 
Tunisian corsairs and to regulate the commerce be- 
tween the two countries.- It was in connection 
with one of the provisions upon the latter subject 
that the Senate interposed its authority to protect 
the United States from the results of a serious 
diplomatic error. 

Immediately after having been read, the message 
and the treaty were referred to a committee com- 
posed of Bingham of Pennsylvania, Read of South 
Carolina, and Sedgwick of Massachusetts.^ They 
reported a resolution advising and consenting to 
the ratification of the treaty on condition that the 
fourteenth article be suspended and recommending 
that the President enter into further negotiations 
with the Bey "on the subject of the said article, so 

1 Sen. Exec. Jour., I. 262. For discussion of the treaty see Lyman, 
Diplomacy of the United States, II. 396-402; Allen, Our Navy and 
the Barbary Corsairs, pp. 59-66. 

2 For original treaty and documents submitted therewith see 
A7n. State Papers, For. Rels., II. 123-125. 

3 Sen. Exec. Jour., I. 262. 



THE ADMINISTRATION OF JOHN ADAMS 109 

as to accommodate the provisions thereof, to the ex- 
isting treaties of the United States with other na- 
tions." This resolution was adopted.^ 

The article which was thus suspended by the 
Senate was intended to regulate the customs duties 
between the two countries. It read as follows: 

The Citizens of the United States of America, who shall 
transport into Tunis the merchandise of their country, 
in the vessels of their nation, shall pay three per cent. 
duty. Such as may be laden by such citizens under a 
foreign flag coming from the United States, or elsewhere, 
shall pay ten per cent. duty. Such as may be laden by- 
foreigners on American vessels coming from any place 
whatever, shall also pay ten per cent. duty. If any 
Tunisian merchant wishes to carry merchandise of his 
country, under any flag whatever, into the United States 
of America, and on his own account, he shall pay three 
per cent, duty.^ 

The Senate found two objections to this article. 
First, the provisions governing the duties to be 
paid by citizens of the two states, respectively, 
upon goods carried into the other violated the 
principle that treaties should be reciprocal in their 
terms. These provisions, however, probably were 
of little practical importance, inasmuch as the 
amount of goods brought into the United States 
by the merchants of Tunis was, and might be ex- 
pected to remain, small. 

The second objection was a more serious one. 
It was based upon a direct conflict between the last 
provision of the article in question and the most 
favored nation clause in our treaties with other 

1 Sen. Exec. Jour., I. 263-264. 

2 Am. State Papers, For. Rels., II. 124. 



110 THE SENATE AND TREATIES 

nations. Its probable effect upon the United States, 
had it been enforced, is clearly set forth in the fol- 
lowing paragraph from the instructions under which 
the negotiations for its alteration were carried on: 

The revenues of the United States arise chiefly from 
duties on goods imported. The duties generally exceed 
ten per cent. They are imposed on our own merchants, 
and increased on the merchants of foreign nations. Our 
treaties with these nations state that no higher duties 
shall be paid by their subjects than by those of the most 
favored nation. Consequently, if this article in the 
Treaty with Tunis should be ratified by the American 
Government, the duties on all the goods imported into 
the United States by the subjects of these foreign nations 
must be reduced to three per cent. This would neces- 
sarily involve the reduction of the duties on goods im- 
ported in our own vessels, or our whole navigation would 
sink beneath the unequal burthen.^ 

In December, 1799, the President informed the 
Senate that in accordance with their recommenda- 
tion he had entered into a further negotiation with 
the Bey on the subject of the fourteenth article of 
the treaty, and laid the result of the negotiation 
before them.- In addition to the modification of 
the article which was rejected by the Senate, the 
new negotiation had resulted in alterations to the 
eleventh and twelfth articles.^ 

^ Instructions to Richard O'Brien, William Eaton, and James 
Leander Cathcart, Am. State Papers, For. Rels., II. 281. 

2 Sen. Exec. Jour., I. 328. 

^ The eleventh article had provided that upon entering the port of 
one of the parties a war vessel of the other should be saluted by the 
fort and should return the salute, gun for gun; also that she should 
give to the authorities of the port a barrel of powder for each gun 
fired. It was well known that no war vessel of Tunis would be 



THE ADMINISTRATION OF JOHN ADAMS 111 

The Senate referred the matter to the committee 
which had recently been appointed to consider the 
treaty with Prussia. The reference to this com- 
mittee is explained by the fact that Bingham, its 
chairman, and one other member had served on 
the committee upon the original treaty with Tunis, 
of which Bingham had been chairman. A few 
days later the Senate gave its advice and consent 
to the ratification of the three articles in question.^ 

There seem to be no means of ascertaining whether 
the action of the Senate in suspending the fourteenth 
article of this treaty was spontaneous or whether 
the recommendation of the original committee 
sprang from a suggestion from the State Department 
or the President. It is obvious, however, that the 
Senate gave to the government of the United States 
an opportunity to propose the necessary alteration 
upon grounds that Tunis could not reasonably 
take exception to. The change in itself was of the 
greatest importance. Had the treaty been rati- 
fied as signed, the United States undoubtedly would 

likely to entec an American port, while the almost constant presence 
of American cruisers in the Mediterranean could thus be made to 
furnish the Bey with a fairly steady supply of powder — particu- 
larly as the number of guns to be fired was unlimited. In the re- 
vised article it is provided that the salute should not be fired by the 
forts except at the request of the American consul ; that the number 
of guns should be fired which he might reqviest; and, "if the said 
Consul does not want a salute, there shall be no question about it." 
Article XI, Treaty of Amity, Commerce and Navigation, Tunis, 
1797. Treaties, Conventions, International Acts, Protocols and 
Agreements Between the United States of America and Other Powers, 
1776-1909 (Sen. Doc, No. 357, 61st Cong. 2d Session), p. 1796. 
1 Sen. Exec. Jour., I. 32^330. 



112 THE SENATE AND TREATIES 

have been compelled to secure its abrogation or 
alteration as soon as the other nations with which 
we had treaty relations discovered the terms of the 
fourteenth article. 

THE TREATY OF 1799 WITH PRUSSIA 

Senate action on the treaty of 1799 with Prussia 
adds but little to a study of the development of 
the treaty-making power. This treaty was prac- 
tically a renew^al, with modifications, of the Prussian 
treaty of 1785, and in itself seems to have been ac- 
ceptable to the Senate. The nomination of the 
negotiator, John Quincy Adams, as minister pleni- 
potentiary to Prussia, was opposed by more than a 
third of the Senate but this opposition seems to 
have been directed primarily at the establishment 
of a permanent minister at the Court of Prussia. 
Adams was confirmed in Maj'', 1797,^ and the treaty 
which he negotiated was submitted to the Senate in 
December, 1799. It was ordered to be printed, 
and three days later was referred to a committee 
composed of Bingham of Pennsylvania,- Dexter of 
Massachusetts, Watson of New York, Read of 
South Carolina, and Goodhue of Massachusetts. 
Late in January this committee reported a resolu- 
tion of advice and consent to ratification. Before 
adopting the report, the Senate, after extended de- 
bate, passed a resolution asking for the instructions 
given to Adams and for the correspondence respect- 
ing the negotiation. The papers were submitted 
on February 17, and on the day following, the 

' Sen. Exec. Jour., I. 240-242. 



THE ADMINISTEATION OF JOHN ADAMS 113 

Senate voted to advise and consent to ratification, 

26 to 6.^ 

Although in the case of the Prussian treaty the 
disapprobation of a large minority of Senators to 
the nomination of a minister did not extend to the 
treaty which that minister was to negotiate, it is 
evident that the influence which this means of ex- 
pressing disapproval of a treaty might exert upon 
the executive was well understood at the time. 
That it was realized is clearly shown by the action of 
certain Senators with reference to the nomination 
of John Quincy Adams in 1798 as commissioner to 
secure a treaty of amity and commerce with Sweden. 
The nomination was sent in on March 12. Two days 
later it was confirmed, 20 to 8.^ On the following 
day JefTerson wrote to his friend Madison as follows: 

The President has nominated John Quincy Adams 
Commissioner Plenipotentiary to renew the treaty with 
Sweden. Tazewell made a great stand against it, on the 
general ground that we should let our treaties drop, and 
remain without any. He could only get eight votes 
against twenty. A trial will be made today in another 
form, which he thinks will give ten or twelve against 
sixteen or seventeen, declaring the renewal inexpedient. 
In this case, notwithstanding the nomination has been 
confirmed, it is supposed the President would perhaps 
not act under it, on the probability that more than a 
third would be against ratification. I believe, however, 
that he would act, and that a third could not be got to 
oppose the ratification.^ 

1 Sen. Exec. Jour., I. 326, .327, 337-340; Am. State Papers, 
For. Rels., II. 244-268; Lyman, Diplomacy of the United States, I. 
150-153, discusses the policy involved in renewing the treaty. 

- Sen. Exec. Jour., I. 266. 

3 Jefferson to Madison, March 15, 1798. Writings of Thomas 
Jefferson, X. 8. 



114 THE SENATE AND TREATIES 

The journals of the Senate disclose no such at- 
tempt on the part of Tazewell; possibly he had be- 
come convinced of the futility of his opposition. 
But in any event the incident shows clearly that at 
the time it was recognized that a strong minority 
could, if it desired, adopt this means of discouraging 
the undertaking of any negotiation of which it 
disapproved. 

SENATE AMENDMENTS TO THE TREATY OF 1800 
WITH FRANCE 

The action of the Senate in connection with the 
treaty with France of September 30, 1800, is of 
importance for two reasons. First, the manner in 
which the Senate amended the convention is a 
striking example of the extent to which that body 
can influence the treaty stipulations and affect the 
foreign policy of the United States. Second, it was 
during the consideration of this convention that the 
Senate adopted its first set of rules formally setting 
forth the procedure to be followed when a treaty 
should be laid before it for ratification. 

The political and commercial relations between 
the United States and France had been defined by 
the treaties of amity and commerce, and of alliance 
of 1778, and by the consular convention which had 
been ratified in 1789. Changing conditions, how- 
ever, made the stipulations of these treaties dif- 
ficult to fulfill, particularly for the United States, 
Between 1790 and 1798, the two republics passed 
from disagreement and mutual recrimination to 
de facto, if not de jure war. Congress, in July, 1798, 



THE ADMINISTRATION OF JOHN ADAMS 115 

by law declared the treaties of 1778 and the consular 
convention to be abrogated.^ In February, 1799, 
in response to advances made by the French govern- 
ment, the President nominated Oliver Ellsworth, 
Chief Justice of the United States, Patrick Henry, 
ex-Governor of Virginia and William Vans Murray, 
Minister Resident at the Hague, ''to be Envoys 
Extraordinary and Ministers Plenipotentiary to the 
French Republic, with full powers to discuss and 
settle, by treaty, all controversies between the 
United States and France." - In December, 1799, 
William R. Davie, Governor of North Carolina, was 
substituted for Henry, ^ 

Secretary Pickering's instructions to these en- 
voys directed that at the opening of the negotiation 
they should,^ 

inform the French ministers, that the United States ex- 
pect from France, as an indispensable condition of the 
treaty, a stipulation to make to the citizens of the United 
States full compensation for all losses and damages which 
they shall have sustained by reason of irregular or illegal 
captures or condemnations of their vessels and other 
property, under color or authority of commissions from 
the French republic or its agents. And all captures and 

1 United States Statutes at Large, I, 578 (Acts of 2d Sess. of 5th 
Cong., Ch. XLVII). 

2 Sen. Exec. Jour., I. 317. ' Ibid., pp. 326-327. 

^ These instructions, the convention, and the other papers sub- 
mitted to the Senate are printed in Am. State Papers, For. Rels., I. 
295-345. In Moore, International Laiv Digest, V. Sec. 821, is to 
be found one of the best brief accounts of our treaty relations with 
France, and perhaps the clearest statement of the action of the Senate 
with reference to this treaty. See also Davis, Notes to Foreign 
Treaties, pp. 1306-1307; Lyman, Diplomacy of the United States, I. 
viii; McMaster, History of the People, II. 527-529; Foster, Century 
of American Diplomacy, Ch. V. 



116 THE SENATE AND TREATIES 

condemnations are deemed irregular or illegal, when con- 
trary to the law of nations generally received and ac- 
knowledged in Europe, and to the stipulations of the 
treaty of amity and commerce, of the 6th of February, 
1778, fairly and ingenuously interpreted, while that 
treaty remained in force. ^ 

And at the conclusion of the instructions it is stated 
that the seven points are "to be considered as 
ultimated." Of these the first is, 

That an article be inserted for establishing a board, 
with suitable powers, to hear and determine the claims 
of our citizens, for the causes herein before expressed, and 
binding France to pay or secure payment of the sums 
which shall be awarded. 

The second point is. 

That the treaties and consular convention, declared to 
be no longer obligator}^ by act of Congress, be not in 
whole or in part revived by the new treaty; but that all 
the engagements to which the United States are to be- 
come parties, be specified in the new treaty. 

The seventh stipulation is that with the exception 
of certain specified provisions, the duration of the 
proposed treaty be limited to not more than twelve 
years.- 

When, during the following summer the American 
envoys met the citizen ministers appointed by the 
First Consul to treat wiih them, it was found that 
France was determined to agree to neither of the 
two chief objects which they had been instructed 
to secure. Joseph Bonaparte and his colleagues in- 
sisted that the ancient treaties were still in force, 

1 Am. State Papers, For. ReLs., II. 302. '- Ibid., p. 306. 



THE ADMINISTRATION OF JOHN ADAMS 117 

and denied that France was liable for any of the 
indemnities demanded for injuries to American 
shipping. An appeal to Napoleon, then in Italy, 
brought fresh instructions to his negotiators. In 
their own words, his proposition was ''reduced to 
this simple alternative: Either the ancient treaties, 
carrying with them the privileges resulting from 
anteriority, together with stipulations for reciprocal 
indemnity; Or a new treaty, promising equality, 
unattended with indemnities." ^ 

Napoleon, in effect, had given the Americans their 
choice of the two objects which they had been in- 
structed to secure; they could not have both. 
Nor could he be moved from this position. A 
month later the American ministers became con- 
vinced of this fact. Not having authority either to 
give up the claims for indemnity or to admit the 
present validity of the treaties which their govern- 
ment had declared to be no longer binding upon 
the United States or its citizens, they determined 
to conclude a temporary arrangement upon both 
subjects. It was proposed that permanent settle- 
ment be ''postponed until it can be resumed with 
fewer embarrassments."^ The result of this de- 
cision was Article 2 of the treaty as signed September 
30, 1800. This article was as follows: 

The Ministers Plenipotentiary of the two parties not 
being able to agree, at present, respecting the treaty of 
alliance of 6th February, 1778, the treaty of amity and 
commerce of the same date and the convention of 14th 
of November, 1788, nor upon the indemnities mutually 
due or claimed; the parties will negotiate further upon 

1 Am. State Papers, For. Rels., II. 332. ^ Ibid., p. 339. 



118 THE SENATE AND TREATIES 

these subjects at a convenient time, and until they may 
have agreed upon these points, the said treaties and con- 
vention shall have no operation, and the relations between 
the two countries shall be regulated as follows : ^ 

No limit was set to the duration of the conven- 
tion. Moore states that with this exception, and 
that of compensation for condemnations and cap- 
tures it substantially conformed to Pickering's ul- 
timata.- The fact remained, however, that the two 
primary objects of the negotiation, the two questions 
which seemed of the utmost importance to almost 
every American of the day, were left unsettled. 
The executive had secured neither indemnity nor 
an abrogation of the treaties. What would the 
Senate do? 

The Senate received the convention on December 
16, 1800.^ With it President Adams submitted the 
lengthy journal of the envoys, and a few days later, 
by request, the instructions under which the nego- 
tiators had acted. From the first the unpopularity 
of the treaty extended to the members of both 
parties. Three days after it was received Jefferson 
wrote to Madison that it would meet with opposition 
from both sides of the House; and he stigmatized 
it as the result of a ''bungling negotiation."^ A 
few days later Hamilton wrote from New York to 
Gouverneur Morris stating that several friends had 
informed him that there was ''likely to be much 
hesitation in the Senate about ratifying the Con- 

1 Am. State Papers, For. Rels., II., 29.5-296. 
- Moore, International Law Digest, V. 611. 
3 Sen. Exec. Jour., I. 359. 

* Jefferson to Madison, December 19, ISOO, Wrilings of Thomas 
Jefferson, X. 185. 



THE ADMINISTRATION OF JOHN ADAMS 119 

vention." ^ On the fifth of January, Pickering in a 
letter to Rufus King, stated, "It is reprobated by 
both parties, and if ratified it will be with excep- 
tions." 2 

Almost exactly a month after it had been given 
into their hands the Senate referred the several 
votes which had been taken on the treaty to a 
committee composed of Morris, Nicholas, and Day- 
ton with instructions to reduce them into the form 
of a ratification.^ This proposed ratification showed 
that two-thirds of the Senators had voted for rati- 
fication with four provisos, as follows: 1. That the 
second article be expunged. 2. That the third article 
be expunged.^ 3. That an article be inserted ex- 

1 Hamilton to G. Morris. The Works of Alexander Hamilton 
(Lodge ed.), X. 399. Hamilton thought that the convention should 
be ratified, "as the least of two evils." 

2 Pickering to King, January 5, 1801, Life and Correspondence 
of Rufus King, III. 366. On January 2, Senator McHenry, writing 
to his friend Rufus King, then our minister in London, said: "The 
convention lately entered into with France is before the Senate. 
Is it liked? No. As to its fate; some think it will be rejected; 
others that it will be accepted with modifications and exceptions; 
no one that it will be ratified as it is. McHenry to King, Life and 
Correspondence of Rufus King, III. 363. 

Perhaps the strongest argument in favor of ratification was 
that- the treaty at least would result in peace. This is graphically 
expressed by Pinckney, who wrote to Rufus King, December 27, 
1800, "The treaty with the French Repubhc is before the Senate. 
... If it be ratified our little navy will be hauled up. Pickering 
to King, Life and Correspondence of Rufus King, III. 353. 

3 Sen. Exec. Jour., I. 370. 

4 This article provided that public vessels which had been taken 
on either side, or which might be taken before the exchange of 
ratifications, should be restored. Am. State Papers, For. Rels., 
II. 296. Although reciprocal in terms it militated against the 
United States and added to the unpopularity of the treaty. Sena- 
tors and people were reluctant to return these "trophies of war." 



120 THE SENATE AND TREATIES 

pressing the understanding that nothing in the 
convention should be so construed to operate 
contrary to any former and existing treaties of either 
party. 4. That by an additional article it be stipu- 
lated that the duration of the convention should 
be eight years from the time of the exchange of 
ratifications. But when these questions were sever- 
ally put to the Senate the fourth was the only one 
which received the constitutional majority; and 
the report, amended accordingly, failed, 16 to 14.^ 
This was understood to mean the rejection of the 
treaty, and on the following Monday a resolution 
was introduced to make the action a formal one.' 

A large majority of the senators, however, con- 
sidered the treaty, with some amendments, to be 
better than the existing conditions and those which 
might follow its rejection.^ Hamilton and other in- 
fluential Federalists, including the President, urged 
its acceptance, probably on both party and national 

1 Sen. Exec. Jour., I. 370, 37.3-4. ^ jj^i^^ p. 374. 

' The following excerpts from the diary of Gouveneur Morris 
throw an interesting light on the action of the Senate at this point: 
"I go through the treaty in the House today," Morris says, January 
15th "and agree to the amendments of the committee; some 
sharpness of debate. Report the form of a ratification; consiTler- 
ation postponed." On the 23d the Senate rejected the convention 
with France, "by the intemperate passion of its friends." By 
the 26th there was a general desire in the House " to recede from 
the vote as it stands on the convention. As I all along expected 
it will be reconsidered." Diary and Letters of Gouverneur Morris 
II. 399. A reconsideration, in fact, seems to have been generally 
expected! February 1, Pickering in relating to Rufus King the 
details of the rejection concluded, "It is suggested, however, as 
a thing to be expected from the Democrats, that a reconsideration 
may be proposed in order to ratify with conditions rather than lose 
the treaty." Life and Correspondence of Hufns King, III. 392. 



THE ADMINISTRATION OF JOHN ADAMS 121 

grounds.^ The result was that the advice and con- 
sent of the Senate was given to ratification with 
the provisos that the second article be expunged 
and that the convention should be limited in its 
operation to eight years from the time of the ex- 
change of ratifications. 

At this point a comparison should be made be- 
tween the action of the Senate on the signed treaty, 
and that taken by the original negotiators upon 
the alternatives offered to them by Napoleon. A 
careful consideration of the second article con- 
vinced the Senate that it recognized the existence 
of the treaties which Congress had declared abro- 
gated. The agreement was that at a future time 
the two governments should negotiate upon the 
abrogation of these treaties and the payment of 
indemnities; and that until then the ''said treaties 
and conventions shall have no operation, and the 
relations between the two countries shall be regu- 
lated," in accordance with the remaining articles 
of the convention:^ The American envoys, devoid 

^ Hamilton to G. Morris, Works of Alexander Hamilton, X. 398- 
400, December 24, 1800; also see Schouler, History of the United 
States, I. 477-479. 

^ On January 16, Morris wrote to Hamilton, "As to the in- 
duction from the words of the second article, that the old treaties 
[subsisted] though their operation was suspended, I think it un- 
deniable that, taken in consideration with other things, would have 
involved us in serious difficulty. . . . When, therefore, acknowl- 
edging their existence by suspending their effects generally, we 
particularly stipulate, and literally renew a part; might not the 
French demand for the part so renewed a priority? . . . Those 
articles (the second and the third) being left out, the convention 
must be considered merely as a treaty of peace. The preexistence 
of war is admitted, and from the moment of that admission there 
is an end to treaties and to claims of restitution and indemnity. 



122 THE SENATE AND TREATIES 

of authority to accept either one of the two alterna- 
tives offered by the French, had postponed the de- 
cision of both in a manner that seemed to have 
strengthened the French position with reference to 
the more important of the two questions — the 
status of the treaties. 

The authority of the Senate, however, was plen- 
ary. By expunging the second article, in effect 
they accepted Napoleon's second proposition,, 
namely, "the abrogation of ancient treaties; the 
formation of a new treaty, . . . and an entire 
silence on the subject of indemnities." 

This amendment of the treaty put the next move 
up to the executive department. Three days be- 
fore the end of the session Adams sent in a message 
in which he said: 

I have considered the advice and consent of the Senate,, 
to the ratification of the convention with France, under 
certain conditions. Although it would have been more 
conformable to my own judgment and inclination, to 
have agreed to that instrument unconditionally, yet, as 
in this point, I found I had the misfortune to disagree 
from so high a constitutional authority as the Senate, 
I judged it more consistent with the honour and interest 
of the United States to ratify it under the conditions- 
prescribed, than not at all. 

He further stated that the matter of the exchange 
of ratifications was to be left to his successor.^ 

Nothing, therefore, can make the matter more clear than to be 
perfectly silent." Morris to Hamilton, January 16, 1801, Diary 
and Letters of Goiiverneur Morris, II. 399-400. This letter was- 
written on the day following the first vote of the Senate to expunge 
the second article. 

' Sen. Exec. Jour., I. 388. Frencli ministers to the American 
envoys, August 11, 1800. .1///. Slalc /'n/xr.s-, For. Rcls., II. 332. 



THE ADMINISTRATION OF JOHN ADAMS 123 

This exchange was affected by Jefferson. But in 
consenting to the adoption of the amendments 
suggested by the American Senate, Napoleon stipu- 
lated that by the expunction of the second article, 
"the two states renounce the respective pretensions 
which are the object of the said article." ^ Thus 
the First Consul stated explicitly what had been 
implied by the action of the Senate. And that this 
was the understanding of the Senate and of the 
President is made evident by subsequent events. 
On December 11, 1801, Jefferson sent in the fol- 
lowing message: 

Early in the last month, I received the ratification, 
by the First Consul of France, of the convention between 
the United States and that nation. His ratification not 
being pure and simple, in the ordinary form, I have 
thought it my duty, in order to avoid all misconception, 
to ask a second advice and consent of the Senate, before 
I give it the last sanction, by proclaiming it to be a law 
of the land.^ 

^ Am. State Papers, For. Bels., II. 344. 

^ Sen. Exec. Jour., I. 397; Jefferson's opinion that the stipulation 
made by Napoleon merely expressed what had been intended by 
the Senate when it rejected Article 3 is officially set forth in the 
following letter from Madison to Livingston: "As the form of 
ratification by the French Government contained a clause de- 
claratory of the effect given to the meaning of the treaty by the 
supression of the second article, it was thought by the President 
most safe, as a precedent, to ask anew the sanction of the Senate 
to the instrument with that ingredient. No decision has yet been 
taken by that body; and from the novelty of the case, the number of 
absent members, and the delays incident to questions of form, it is 
possible that it may be some little time yet before the subject is 
brought to a conclusion. ... I am authorized to say that the 
President does not regard the declaratory clause as more than a 
legitimate inference from the rejection by the Senate of the second 
article, and that he is deposed to go on with the measures due under 



124 THE SENATE AND TREATIES 

After careful consideration by a committee com- 
posed of Logan, Jackson, and Tracy, and in debate 
upon the floor in executive session, the Senate passed 
the following resolution: 

Resolved, that the convention, as ratified by the first 
Consul of France, and declared to be considered by the 
Senate, two-thirds concurring thereto, to be fully rati- 
fied, be returned to the President of the United States, 
for the usual promulgation.^ 

This, it is to be noted, is not a second resolution 
of advice and consent, but a statement that in the 
opinion of the Senate the ratification of Napoleon, 
with its stipulation, did not call for new action by 
that body. Had the definite statement of Napoleon 
as to the effect of the expunction of the second article 
not been in accord with the former intentions of the 
Senate it is hardly likely that they would have failed 
to exercise their authority either to accept or to re- 
ject it, as an explanation of the treaty. 

If the process of making this French Convention 
of 1800 be considered to extend from the nomina- 
tion of the American envoys by the President to 
the final exchange of ratifications, the transaction 
illustrates the extent to which the Senate may par- 
ticipate in the actual negotiation of a treaty. The 
President initiated the negotiation and issued the 
instructions under which it was carried on. The 
agents of the executive, acting under these in- 
structions, signed a convention which settled neither 

the compact to the French RepubUc." Madison, Secretary of 
State, to Livingston, U. S. Minister to France, December 18, 1801, 
Am. State Papers, For. Rels., VI. 155. 
1 Sen. Exec. Jour., I. 397-399. 



THE ADMINISTRATION OF JOHN ADAMS 125 

of the two cardinal points at issue between the two 
nations. The instrument as signed, however, was 
only the draft of a treaty. As such it was referred 
to the ratifying authority of each state for the 
action which alone could give it legal vahdity. A 
part of that authority in the United States, the 
Senate, declined to accept the proposed treaty as 
it stood.^ After famiharizing themselves with the 
details of the negotiations, in effect the Senate went 
back to the point at which the French ministers 
had offered their alternative propositions, the ancient 
treaties with full indemnity, or a new treaty with 
no indemnity. Then, by striking out the second 
article, they did what the envoys could not do — 
they accepted the latter proposition. Also they 
limited the duration of the agreement to eight 

years. 

The executive acceded to these propositions and 
laid them before the government of France. Na- 
poleon, of course, was as free to accept them, to re- 
ject them, or to accept them conditionally as though 
they had been made during the course of the earlier 
negotiation. He saw fit to accede to them, with an 
explicit statement of what was implied by the ex- 
cision of the second article. This acceptance on 
his part was recognized by the Senate as completing 
the ratification of the instrument.- If, on the other 

1 In this case there can be no question of the complete right of 
the United States to refuse to ratify what its agents had agreed to, 
for the reason that those agents had agreed to a convention which 
was not in accord with their instructions. 

2 That the Senate understood that in advising and consenting 
to a conditional ratification they were running the risk of losing the 
convention is made evident by the correspondence of leading Senators 



126 THE SENATE AND TREATIES 

hand, further conditions had been postulated by 
the First Consul these in turn might have come be- 
fore the Senate for consideration. 



RULES FOR PROCEDURE UPON TREATIES 

It has been noted that from the moment of the 
submission of the French Convention of 1800, 
senators were aware that the struggle over its 
adoption would be a severe one. Perhaps this was 
the reason that during its consideration the first 
set of standing rules governing in detail procedure 
upon treaties was adopted. Along with the con- 
vention the President had submitted the journals 
of the American ministers. These were read 
through in three days, and Adams was then re- 
quested to lay before the Senate the instructions of 
the envoys. '^ In complying with this request he 
asked that the instructions be considered in strict 
confidence and that they be returned to him as 
soon as the Senate should have made all the use of 
them which they might judge necessary. The fol- 
lowing resolution was then adopted: 

Resolved, That all confidential communications made by 
the President of the United States to the Senate, shall be, 
by the members thereof, kept inviolably secret; and that 
all treaties which may hereafter be laid before the Senate, 

on both sides. It therefore is to be assumed that the Senate pre- 
ferred no treaty at all to that presented to them. See Hamilton 
to Morris, January 10, 1801, Works of Alexandei- Hamilton, X. 410, 
Pickering to King, January .5, 1801, Life and Correspondence of 
Rufus King, III. 366; G. Morris to Robert Livingston, February 20, 
1801, Diari) and Letters of GouvcDieur Morris, II. 404. 
1 Sen. Exec. Jour., I. 359-360. 



THE ADMINISTRATION OF JOHN ADAMS 127 

shall also be kept secret, until the Senate shall by their 
resolution, take off the injunction of secrecy.^ 

Thus the Senate established a standing rule pro- 
viding for the secret consideration of all treaties 
and all confidential communications from the Presi- 
dent in relation to treaties or foreign affairs. 

The next step in the formulation of procedure 
was taken early in January. After it had discussed 
the treaty for several weeks, and before balloting 
thereon, the Senate laid down the following general 
rule : 

Resolved, (as a standing rule,) That whenever a treaty 
shall be laid before the Senate for ratification, it shall be 
read a first time, for information only; when no motion 
to reject, ratify, or modify, the whole, or any part, shall 
be received. 

That its second reading shall be for consideration, and 
on a subsequent day, when it shall be taken up, as in a 
committee of the whole, and every one shall be free to 
move a question on any particular article, in this form — 
"Will the Senate advise and consent to the ratification 
of this article?" or to propose amendments thereto, 
either by inserting or by leaving out words; in which 
last case the question shall be, ''Shall the words stand 
part of the article?" And in every of the said cases, the 
concurrence of two-thirds of the Senators present shall be 
requisite to decide affirmatively. And when through the 
whole, the proceedings shall be stated to the House, and 
questions be again severally put thereon for confirmation, 
or new ones proposed, requiring in like manner, a con- 
currence of two-thirds for whatever is retained or inserted. 

That the votes so confirmed shall, by the House, or 
a committee thereof, be reduced into the form of a rati- 
fication, with or without modifications, as may have been 
decided, and shall be proposed on a subsequent day, 

1 Sen. Exec. Jour., I. 361. 



128 THE SENATE AND TREATIES 

when everyone shall be free again to move amendments, 
either by inserting or leaving out words; in which last 
case, the question shall be, "Shall the words stand part 
of the resolution?" And in both cases the concurrence 
of two-thirds shall be requisite to carry the affirmative; 
as well as on the final question to advise and consent to 
the ratification, in the form agreed to.^ 

The provisions of this rule may be briefly 
summarized. Three readings on three different 
days are provided for. The first is for infor- 
mation only and at this time no motion to act 
upon the treaty or any part of it is in order. Nothing 
is said as to other motions, such as to refer to a 
committee, to request further information from the 
executive, and so on. The second reading is for 
consideration, debate, and balloting in the com- 
mittee of the whole. All questions to ratify, amend, 
or reject any part of the treaty are to be decided 
by a two thirds vote. The same majority is made 
necessary for the acceptance by the House of each 
part of the report of the committee. It is then 
provided that the votes so confirmed shall be re- 
duced into a form of ratification. This resolution 
shall in turn be submitted to debate, and shall be 
liable to amendment by two thirds vote. The 
final question to advise and consent to the rati- 
fication shall be on the form agreed to and a two 
thirds vote shall be necessary to carry the affirmative. 

It has been noted that after the French con- 
vention had been rejected, the general sentiment 
of the Senate was in favor of a reconsideration. On 
February 3, accordingly, a rule was adopted which 
provided, 

' Sen. Exec. Jour., I. 365. 



THE ADMINISTKATION OF JOHN ADAMS 129 

That when any question may have been decided by 
the Senate in which two-thirds of the members present 
are necessary to carry the affirmative, any member who 
voted on that side which prevailed in the question, may 
be at hberty to move for a reconsideration ; and a motion 
for reconsideration shall be decided by a majority of 
votes. ^ 

1 Sen. Exec. Jour., I. 376. 

Section LII of Jefferson's Manual treats rather of the nature of the 
treaty-making power, and the relative powers of the President and 
the Senate therein than of the procedure of the Senate upon treaties 
laid before it. He refers to the usage in accordance with which 
the President was accustomed to communicate to the Senate the 
correspondence of the negotiators along with the treaty, and also 
states that the mode of voting on questions of ratification was by 
nominal call. Senate Manual, Containing the Standing Rules and 
Orders of the United States Senate (edition 1918), pp. 306-308. 

Under the present rules, the procedure of the Senate on treaties 
is regulated by Rules XXXVI and XXXVII. Section three of the 
former enjoins secrecy upon senators in almost the same words as 
when adopted in 1801. The rule for proceedings on treaties has 
been altered in a number of details. The most important change 
is that which provides that a concurrence of two thirds of the Sena- 
tors present shall be required to carry only the question of advice 
and consent to ratification, or to postpone indefinitely, other ques- 
tions being carried by a simple majority. Ibid., pp. 40-44. 



CHAPTER VII 

The Senate and the Treaties of 
Thomas Jefferson 

the convention of 1802 with spain 

The proceedings of the Senate upon the claims 
convention of 1802 with Spain gave rise to several 
interesting developments. The treaty had been 
negotiated by Charles Pinckney, Minister of the 
United States in Madrid, under instructions to 
secure reparation from Spain for spoliations com- 
mitted upon American commerce, principally during 
the naval war between the United States and France. 
Hundreds of American vessels had been captured 
by French privateers sailing from Spanish ports, 
and wrongfully condemned, either by Spanish 
tribunals, or by French consuls within Spanish 
jurisdiction.^ Spain admitted responsibility for the 
acts of Spanish subjects, and the convention pro- 
vided that claims arising out of spoliations by 
them should be adjudicated by a mixed commission 

^ Am. State Papers, For. Rels., II. 476. Extract of a letter 
from the Secretary of State to Charles Pinckney. The correspond- 
ence and other documents connected with this convention will be 
found, Ibid., pp. 440-4.58, 475-483, 596-608, 613-695. See also 
Davis, "Notes Upon Foreign Treaties of the United States," p. 1384; 
McMaster, Hislorij of the People, III. 34-36; Chadwick, The Rela- 
tions of the United States and Spain, Diplomacy, p. 70, et seq.; Moore, 
Intcntdiioudl Latr Digest, \a\. \ ., Sec. 821. 

130 



THE TREATIES OF THOMAS JEFFERSON 131 

sitting in Madrid; but all rights arising under 
claims originating from the excesses of foreign 
cruisers, agents, consuls, or tribunals in the terri- 
tories of either nation were to be reserved for future 
negotiation. 

The convention was submitted to the Senate in 
January, 1803,^ and was not finally passed upon 
until virtually a year thereafter. Soon after it was 
received, and again in March, the Senate took 
definitive action upon the treaty, but in each case 
reconsidered its decision.- Late in the following 
November, after the most pressing of the matters 
connected with the purchase of Louisiana had been 
disposed of, it resumed the consideration of the 
Spanish convention. Bradley, Jackson, and Bald- 
win were appointed a committee to inquire whether 
further proceedings by the Senate were necessary, 
and the convention was ordered to be printed.* 
This committee probably consulted with the Presi- 
dent or with the Secretary of State, for on Decem- 
ber 21 Jefferson sent in a message explaining the 
existing situation with reference to the treaty. 
The President stated that Pinckney had been in- 
structed to press for an additional article compre- 
hending French seizures and condemnations of 
American vessels in the ports of Spain. He also 
submitted correspondence which showed that this 
demand was being strongly resisted by the Spanish 
government, and suggested that it might be ad- 
visable to take what indemnities already had been 
conceded and negotiate on the other claims when 

1 Sen. Exec. Jour., I. 435. ^ /^^^.^ 43Q-7, i41-8. 

3 Ibid., p. 459. 



132 THE SENATE AND TREATIES 

the question of the boundaries of Louisiana came 
up for discussion.^ This was also the opinion of 
the Senate, and on January 9 the convention was 
ratified as it stood, after the FederaUst senators 
had vainly attempted to attach a condition that it 
should be understood to embrace all claims arising 
out of the action of Spanish subjects or American 
citizens, whether official or unofficial persons. - 

In reviewing the action of the Senate as outlined 
above, attention should be directed to the reasons 
for its hesitation to act, to the results of the delay 
which this caused in the exchange of ratifications, 
and to two interesting phases of its procedure upon 
the convention. With reference to the first point, 
there can be no doubt as to the nature of the objec- 
tions to the treaty. It was felt that no settlement 
should be made which did not bind Spain to make 
reparation for the loss of American ships carried 
into Spanish ports by French privateers or national 
vessels, and there condemned by French consuls.^ 

1 Sen. Exec. Jour., I. 461; Atn. State Papers, For. Rels, II. 596- 
606. 

2 Sen. Exec. Jour., I. 462. 

^ Immediately after the adjournment of Congress in March, 
1803, Madison instructed Pinckney to press for the inckision of 
these claims, saying, "More than a majority, but less than two- 
thirds, which constitution requires, would have acquiesced in the. 
instrument in its present form; trusting to the success of further 
negotiations for supplying its defects, particularly the omission 
of the claims founded on French irregularities. But it is understood 
that it would have been a mere acquiescence, no doubt being enter- 
tained that Spain is bound to satisfy the oniitted as well as the 
included claims. In explaining, therefore, the course taken by the 
Senate, which mingles respect for the Spanish government with a 
cautious regard for our own rights, you will avail yourself of the 
o{)portunity of pressing the reasonableness and sound policy of 



THE TREATIES OF THOMAS JEFFERSON 133 

The feeling on this point was so strong that the 
Senate seemed determined to consent to no treaty 
that did not provide for the settlement of both 
classes of claims. 

The result of the year's delay in the ratification 
of this treaty by the United States was that no 
American claims were ever adjusted under it. 
During the interval occurred the cession of Louisi- 
ana, which increased the tension between this 
country and Spain; and after the passage of the 
Mobile Act, setting up a United States customs 
district in West Florida, Spain refused to ratify 
the treaty except under conditions to which the 
United States could not assent.^ Ultimately, in 
1818, Spain did ratify it unchanged, but it was 
annulled by Article X of the Treaty of 1819, before 
any action had been taken under it."^ 

In the matter of procedure two points of interest 
arise. The first is in connection with the opinion 
given by five eminent lawyers of Philadelphia and 
New York that Spain was under no obligation to 
make reparation for American vessels captured by 
French subjects and condemned in Spanish ports 
by French consuls. The question had been pre- 
sented hypothetically by Spanish agents to Jared 

remodelling the convention in such a manner as to do full justice." 
Am,. State Papers, For. Rels., II. 596. In announcing the ratification 
of the convention to Robert R. Livingston, Minister to France, 
Madison wrote, "The objection to it was, that it did not provide 
in sufficient extent, for repairing the injuries done to our commerce, 
particularly in omitting the case of captures and condemnations by 
French cruisers and consuls, within Spanish responsibility. Ibid., 
p. 614. 

1 Cevallos to Pinckney, July 2, 1804. Ibid., p. 619. 

^ Treaties and Conventions, II. 1655. 



134 THE SENATE AND TREATIES 

Ingersoll, William Rawle, J. B. McKean, P. S. 
Duponceau, and Edward Livingston with a sub- 
stitution of the letters A, B, and C for the names 
of Spain, France, and the United States. These 
gentlemen had agreed that Spain was not required 
by international law to pay the indemnities referred 
to. This opinion rested principally on the grounds, 
first, that Spain had been unable to pi-event the 
spoliations, second that the claims in question had 
been released by the treaty of 1800 with France.^ 
The signed opinion of these men was forwarded 
to the Spanish government, which used it to 
refute the arguments by which Pinckney sought 
to obtain an additional article covering these 
claims.- 

The correspondence between Pinckney and Ceval- 
los on this subject was submitted to the Senate 
with the message of December 21, 1804, probably 
in response to inquiries by Senators Bradley, Jack- 
son, and Baldwin, who, it will be remembered had 
been appointed to consider the expediency of taking 
further action on the treaty. On the day following 
the receipt of the message and documents, this 
committee was discharged. Bradley immediately 
introduced a resolution that a select committee be 
appointed to consider and report "whether and, if 
any, what, further proceedings ought to be had by 
the Senate, in relation to the message on the dis- 
closures made by the same." ^ This resolution was 
agreed to immediately after the Senate had advised , 
the ratification of the treaty, and the three men 

1 Am. State Papers, For. Rels., II. 605. 

2 Ibid., p. 604 et seq. ' Sen. Exec. Jour., I. 461. 



THE TREATIES OF THOMAS JEFFERSON 135 

who had composed the earher committee were ap- 
pointed to this one.^ 

Towards the end of the session this committee 
brought in a report calUng the attention of the 
Senate to the opinions expressed by the five lawyers. 
They stated their behef that the correspondence 
which these gentlemen had carried on with the 
agents of the Spanish government with an intent 
to influence the measures and conduct of the gov- 
ernment of Spain, and to defeat the measures of 
the government of the United States, was in viola- 
tion of the act of January 30, 1799.^ The report 
concluded by recommending that the President be 
requested to lay before the Attorney General all 
documents relating to the matter and that if, in 
the opinion of the latter officer, the evidence was 
sufficient to warrant it the President be requested 
to instruct the proper officer to commence a prose- 
cution under the act of 1799.^ 

Although the Senate never acted upon this report, 
the incident is an example of its tendency to take a 
high view of its prerogatives under the treaty-making 
power, and of its alertness to resent any action which 
might be in derogation of them. The Senate has 
always guarded well its constitutional powers, and 
more than once this attitude has been an important 
factor in its decisions concerning foreign affairs. 



1 Sen. Exec. Jour., I. 463. 

2 A discussion of the origin of this act, known as the Logan Act, 
and of its subsequent history is to be found in Foster, A Century of 
American Diplomacy, pp. 226-231; see also McMaster, History 
of the People, III. 284. 

3 Sen. Exec. Jour., I. 469-470. 



136 THE SENATE AND TREATIES 

The second point of interest in the procedure upon 
this convention is to be found in the use of the com- 
mittee in its consideration. During the session of 
1803 in which definite action was twice taken, only 
to be reconsidered, the Senate dealt with the matter 
directly. No committee was appointed. Before 
the subject was resumed in the following session, 
a committee of three was chosen, simply to ascer- 
tain the existing situation between the executive 
and the Spanish government with reference to the 
treaty. The functions of this committee ended 
with the communication by the President of this 
information. Acting directly the Senate then pro- 
ceeded to pass the resolution of advice and consent, 
and, afterwards, appointed another committee to 
investigate the disclosures of interference by Ameri- 
can lawyers. This course affords a typical example 
of the status of the committee in treaty affairs during 
this period, when no fixed rules regulated its use or 
function in the procedure of the Senate upon foreign 
relations. 

THE SENATE AND THE LOUISIANA TREATY 

In midsummer, 1803, President Jefferson issued 
a proclamation convening Congress in extraordinary 
session on the seventeenth of the following October 
to consider certain ''great and weighty matters."^ 
These matters concerned the treaties by which, on 
the thirtieth of the preceding April, France had 
ceded to the United States the vast territory of 
Louisiana. Congress was to be called upon to meet 

^ Richardson, Messages, I. 357. 



THE TREATIES OF THOMAS JEFFERSON 137 

the stipulated conditions and to provide for taking 
over and governing the empire which the executive 
had obtained.^ 

Following the usage which had become established 
by that time, the Senate on January 12, 1803, had 
approved the general proposition of a treaty with 
France on the question of our rights on the Mis- 
sissippi, by confirming the nomination of ministers 
to carry on the negotiation. The sort of treaty 
which the Senate had provisionally sanctioned, 
however, was far different from that which subse- 
quently was signed, Livingston and Monroe had 
been nominated 'Ho enter into a treaty or conven- 
tion with the First Consul of France for th^ purpose 
of enlarging and more effectually securing our rights 
and interests in the River Mississippi and in the 
Territories eastward thereof." ^ And their con- 
firmation had been expressed in similar terms. ^ 
The treaty which was subsequently signed, however, 
was far different from that which the Senate had 
thus sanctioned. Consequently, so far as their 
previous action was concerned, they were now free 
to judge the question of ratification strictly upon 
its merits. 

1 Probably the most satisfying study of the diplomatic, con- 
stitutional, and political aspects of the Louisiana Purchase is to be 
found in Adams, History of the United States, II. ii-vi. Reference 
also has been made to McMaster, History of the People, II. xiii, 
III. xiv; Hosmer, History of the Louisiana Purchase, Ch. IX; Ogg, 
The Opening of the Mississippi, Chs. XI, XII. Channing, The 
Jeffersonian System, Ch. V. Moore, International Law Digest, 
Vol. v., Sec. 821, gives an excellent discussion of the diplomatic 
phase of the purchase, but does not treat the matter in its con- 
stitutional aspects. 

2 Richardson, Messages, I. 351. ^ Sen. Exec. Jour., I. 436. 



138 THE SENATE AND TREATIES 

After summoning Congress to meet and take 
such action as the situation demanded, Jefferson 
spent the remaining summer months in trying to 
work out the course to be recommended to them 
when they should come together. In this problem 
the time element was all-important. It was, in- 
deed, the determining factor in the action not only 
of the President, but also of the Sienate, and of the 
House of Representatives in the conclusion of the 
great purchase. All concerned would have given 
much to have weighed, considered, debated the 
issues involved, and finally to have secured the 
western empire in a manner and under conditions 
which squared with the political principles which the 
great majority of them had enunciated for years. 
But they feared that if the bargain were not sealed 
and the consideration passed at once the other 
party might withdraw, or perhaps might not be 
able to deliver what had been promised; and in 
the crisis all three either altered or ignored their 
principles, and closed the transaction with a speed 
which would seem to disprove the familiar state- 
ment that under our form of government prompt 
and positive action in treaty-making can never be 
secured. In fact, the Senate ratified the treaty as 
it stood and Congress passed the measures neces- 
sary to give it effect in a shorter time than had 
been required for the President to make up his 
mind as to what action he should recommend to 
them. 

In Jefferson's correspondence upon the proper 
course to be pursued in the dilemma in which he 
found himself little seems to have been said about 



THE TREATIES OF THOMAS JEFFERSON 139 

the possibility of the rejection of the treaty by the 
Senate. That rejection was not impossible, how- 
ever, was suggested to the President by his friend, 
Wilson Carey Nicholas, Senator from Virginia. 
After urging the President to keep his ideas con- 
cerning the unconstitutionality of the treaty to 
himself, he added, ''I should, think it very probable 
if the treaty should be declared by you to exceed 
the constitutional authority of the treaty-making 
power, it would be rejected by the Senate. . . ." ^ 
As few men were more closely in touch with the 
Republican majority in the Senate of 1803 than 
Nicholas this danger may have been real. At any 
rate, the advice was followed. 

By the end of September the President had 
formulated the outline of his message to Congress. 
One proposal in the draft which he submitted to the 
members of his cabinet gave rise to an interesting 
discussion on the propriety of submitting a treaty 
to the House before the Senate had acted upon it. 
In order to complete the purchase as speedily as 
possible, Jefferson had indicated his intention of 
laying the treaties before both Houses of Congress 
at once. On October 1, Madison returned the 
President's notes upon the draft message, recom- 
mending that this section be altered to read, "These 
stipulations (instruments) will immediately be laid 
before the Senate, and if sanctioned by its concur- 
rence will without delay be communicated to the 
House of Reps. ..." Such a modification, Madi- 
son continued, 

1 Nicholas to Jefferson, September 2, 1803. Adams, History 
of the United States, II. 88, citing Jefferson Mss. 



140 THE SENATE AND TREATIES 

will also avoid what the theory of our constitution does 
not seem to have met [meant], the influence of delibera- 
tions and anticipations of the H. of Reps, on a Treaty- 
depending in the Senate. It is not conceived that the 
course here suggested can produce much delay, since the 
terms of the treaty being sufficiently known, the mind 
of the House can be preparing itself for the requisite 
provisions. Delay would be more likely to arise from 
the novelty and doubtfulness of a communication in the 
first instance, of a treaty negotiated by the executive, 
to both Houses for their respective deliberations.'^ 

Gallatin took practically the same position in 
the remarks on the proposed message which he 
handed to the President four days later. He ob- 
served : 

It seems to me that the treaty ought not be laid be- 
fore both Houses of Congress until after ratification by 
Senate. The rights of Congress in its legislative capacity 
do not extend to making treaties, but only to giving or 
refusing their sanction to those conditions which come 
within the powers granted by the Constitution to Congress. 
The House of Representatives neither can nor ought to 
act on the treaty until after it is a treaty; and if that be 
true no time will be gained by an earlier communication 
to that body. In asserting the rights of the House, great 
care should be taken to do nothing which might be rep- 
resented as countenancing any idea of encroachment of 
the constitutional rights of the Senate. If, in order to 
be able to carry on a negotiation, the Executive wants a 
previous grant of money or other legislative act, as in 
the Algerine treaty, some Indian tribes, and last session 
(2) two millions appropriation, an application may be 
necessary before the negotiation is opened or the treaty 
held; but when as in the present case, the negotiation 
has been already closed and the treaty signed, no necessity 
exists to consult or communicate to the House until the 

' Writings of Tho?nas Jefferson (Ford ed.), VIII. 266n. 



I HE TREATIES OF THOMAS JEFFERSON 141 

instrument shall have been completed by the Senate, and 
President's ratification : in this instance there is no appar- 
ent object for the communication but a supposition that 
they may act, or, in other words, express their opinion 
and give their advice on the inchoate instrument, which 
is at that very time constitutionally before the Senate.^ 

A comparison of the two opinions shows that both 
secretaries based their objections to a simultaneous 
communication of the treaties to both Houses upon 
two main grounds. The first is one of principle 
— it ought not to be done. Madison states this 
most clearly when he says that the theory of the 
Constitution does not seem to have intended that 
the deliberations of the Senate upon an unratified 
treaty should be influenced by its discussion in the 
House. He might have gone farther and pointed 
out that submission to the larger chamber probably 
would be the equivalent of publication. In this 
event the Senate would be subjected to influence 
not only from the House but from the people as 
well. That the application of such influence would 
very seriously curtail, if not practically destroy 
the power of the Senate to decide independently 
the question of ratification is obvious. This con- 
clusion doubtless led to the second objection to 
Jefferson's proposal which was one of expediency. 
Madison and Gallatin agreed that the innovation 
at this time would tend to delay rather than to 
expedite action. Probably both statesmen were con- 
fident that the Senate would resist any such en- 
croachment upon its constitutional powers and 
feared that such resistance might delay and possibly 

' Writings of Albert Gallatin (ed. Henry Adams), I. 154-156. 



142 THE SENATE AND TREATIES 

jeopardize the passage of the resolution of advice 
and consent to ratification. Jefferson decided to 
follow their advice in the matter and the treaties 
were not laid before the House until after they had 
been ratified. 

When Congress met on October 17, the Presi- 
dent, in announcing the signature of the treaties in 
his message to both Houses, said, "When these 
shall have received the constitutional sanction of 
the Senate, they will without delay be communi- 
cated to the Representatives also for the exercise 
of their functions as to those conditions which are 
within the powers vested by the Constitution in 
Congress." The treaties were at once communi- 
cated to the Senate. The message stated that the 
ratification of the First Consul was in the hands 
of his Charge d' Affaires here, to be exchanged 
"whensoever, before the 30th instant, it should be 
in readiness." Three days later advice and consent 
to ratification was given by a vote of 24 to 7. The 
promptness of this action undoubtedly is to be at- 
tributed to the presence of an overwhelming Re- 
publican majority under the thorough control of 
the administration. Little is known of the debates 
during these three days, but it is likely that in the 
main they were along the same lines that were fol- 
lowed during the later discussion of the measures 
for putting the treaty into effect.^ 

From the standpoint of a study of the treaty-mak- 
ing powers of the Senate, however, perhaps the most 
interesting action in connection with the Louisiana 
treaty was taken after the adoption of the resolu- 

1 Sen. Exec. Jour., I. 449-450. 



THE TREATIES OF THOMAS JEFFERSON 143 

tion of advice and consent. In public discussion 
the constitutionality of the treaty had been attacked 
upon two grounds. First it was declared that the 
President and the Senate had no authority to acquire 
Louisiana by treaty; secondly, that part of the 
treaty which provided for the future incorporation 
of the territory into the union was declared to be 
even more obviously beyond the powers of the treaty- 
making part of the government. No sooner had 
the Republican members of the Senate procured 
the agreement of the chamber to ratification than 
the following resolution was introduced by Pierce 
Butler, Federalist member from South Carolina: ^ 

Resolved, That the President of the United States be 
requested to obtain from the French Republic, such a 
modification of the 3d article of the treaty, as will leave 
the government of the United States at liberty to make 
such future arrangements, or disposition of the territory 
of Louisiana, as, in their wisdom, may best promote the 
general interest; always securing to the free inhabitants 
of Louisiana, protection in their persons, security in 
their property, and the free and open enjoyment of their 
religion .- 

The object of the desired modification was, of 
course, to release the nation from its pledge to in- 
corporate the inhabitants of the ceded territory 
into the union. Had it been secured one of the two 

' ^ Under date of October 28, John Quincy Adams recorded in his 
diary, "Attended in Senate. Mr. Butler's resolution for a further 
negotiation with France, under consideration, debated until past 
threejp.m., when we adjourned." Memoirs of John Quincy Adams, 
I. 268. Also on November 4 he noted that, "Mr. Butler's proposed 
resolution for a new negotiation with France was resumed and 
negatived." Ibid., I. 271. 
2 Sen. Exec. Jour., I. 450. 



144 THE SENATE AND TREATIES 

great constitutional objections to the treaty would 
have been obviated. The proposition was debated 
on the twenty-first and the twenty-second. On the 
twenty-first, however, the President had ratified the 
treaties and had exchanged his ratification for that 
of the First Consul. Saturday the twenty-second, 
the completed instruments were laid before both 
Houses with a request for legislation to make them 
effective.^ When the Senate met again on Monday 
it declined to resume consideration of the Federalist 
resolution- and proceeded to provide the legislation 
which the President had asked for. 

On Friday, the twenty-eighth, the Senate bill to 
enable the President to take possession of the ceded 
territory having been passed, and the House bill 
appropriating funds to pay for it not having been 
sent up, debate on Butler's motion of the twentieth 
was resumed.^ Following this, the Senate debated 
the purchase appropriation bill from the House until 
November 3, when the measure was agreed to.* 
Thus, in its legislative capacity, the Senate had done 
what was necessary to put the treaty into effect. 
It then immediately went into executive session for 
the consideration of the resolution advising the Presi- 
dent to attempt to secure a modification of Article 
3. This proposal had support from both sides of 
the house. But when it came to a vote it was 
defeated 9 to 22, four Federalists and five Republi- 
cans being found in the affirmative.^ 

' Annals of Congress, 1803-1804, pp. 17-18. 

2 Sen. Exec. Jour., I. 451. 

3 Sen. Exec. Jour., I. 4.51; Avnals of Congress, 1803-1804, p. 27. 

4 Annals of Congress, 1803-1804, p. 75. * Ibid., p. 452. 



THE TREATIES OF THOMAS JEFFERSON 145 

Very little reference to this proposal is to be 
found in the correspondence of the men involved. 
It seems obvious that the resolution never had a 
chance of adoption; and had the Senate presented 
it to the President, the latter would have been free 
to follow or to ignore the suggestion. It is clear, 
however, that the request was a perfectly proper 
one to be made by the Senate. That it was pro- 
posed, seriously debated, and supported by members 
from both parties is another interesting example of 
the fact that the Senate has always felt that it is 
as much within its constitutional powers to sug- 
gest the initiation of a negotiation as to pass upon 
a treaty already consummated by the executive. 

THE KING-HAWKESBURY CONVENTION 

The King-Hawkesbury Convention of May 12, 
1803, was the first treaty to be lost by the refusal 
of the other signatory to accept an amendment pro- 
posed by the United States Senate. This conven- 
tion provided for the fixing of the northeastern and 
northwestern boundaries between the United States 
and British territory.^ That part of the northwest 
boundary between the Lake of the Woods and the 
Mississippi had been described by the second article 
of the treaty of 1783 as running due west from the 
most northwestern point of the lake to the river. 
Subsequently it was discovered that such a fine 
would not intersect the Mississippi. The fifth 
article of the convention signed by Rufus King 

1 The northwestern boundary question is treated in Eeeves, 
American Diplomacy Under Tyler and Folk, Ch. VIII. 



146 THE SENATE AND TREATIES 

and Lord Hawkesbury rectified tiie error by stipu- 
lating that the boundary in this quarter should be 
the shortest line which could be drawn from the 
northwest point of the Lake of the Woods to the 
nearest source of the Mississippi. It was provided, 
too, that at the request of either party commis- 
sioners should be appointed to determine these 
points and to run the line.^ 

This convention was laid before the Senate on 
October 24, four days after the passage of the 
resolution advising the ratification of the treaties 
by which Louisiana was acquired from France.^ 
The Senate seems to have become alarmed at once 
over the possibility of our rights under the Louisi- 
ana purchase being prejudiced by the terms of the 
fifth article of the convention with England. John 
Quincy Adams records in his diary that on October 
31, ''Mr. S. Smith intimated that since the ratifica- 
tion of the Louisiana Treaty this one must not be 
ratified at all." ^ When the matter was next dis- 
cussed. Senator Wright objected to ratification be- 
cause he feared possible interference between this 
treaty and that containing the cession of Louisi- 
ana.'* On November 15, the convention was re- 

^ The convention and the correspondence submitted to the 
Senate, together with documents explaining the action of the Senate 
in amending the treaty by striking out the fifth article are printed 
in Am. State Papers, For. Rels., II. 584-591. 

" Sen. Exec. Jour., I. 450-451. Two days before the treaty was 
submitted to the Senate Madison wrote to the American ministers 
in Paris, Madrid, and London expressing his confidence that the 
Senate would concur in the ratification of the treaty. Ms. State 
Department, U. S. Ministers, Instructions, XI. 153. 

3 Memoirs of John Quincy Adatns, I. 269. 

* Ibid., p. 271. 



THE TREATIES OF THOMAS JEFFERSON 147 

ferred to a select committee composed of Adams, 
Nicholas, and Wright.^ 

After its chairman had conferred with Madison, 
personally ' and by letter, the committee presented 
the following report: 

That, from the information they have obtained, they 
are satisfied that the said treaty was drawn up by Mr. 
King three weeks before the signature of the treaty with 
the French Republic of the 30th of April, and signed by 
Lord Hawkesbury, without the alteration of a word; 
that it had, in the intention of our minister, no reference 
whatever to the said treaty with the French Republic, 
inasmuch as he had no knowledge of its existence. But, 
Not having the means of ascertaining the precise northern 
limits of Louisiana, as ceded to the United States, the 
committee can give no opinion whether the line to be 
drawn, by virtue of the third []sic] article of the treaty 
with Great Britain, would interfere with the said northern 
limits of Louisiana or not.^ 

Adams and most of his Federalist colleagues be- 
lieved that in these circumstances the fifth article 
could not be construed in derogation of any rights 
which the United States obtained by the purchase 
of Louisiana.'* But the Republican majority did 

^ Sen. Exec. Jour., I. 454. 

2 Memoir's of John Quincy Adams, I. 273, 274. On the seven- 
teenth Adams recorded that he had called on Madison who did not 
approve of the resolution for the conditional ratification of the treaty. 

^ Am. State Papers, For. Rels, II. 590; See Life and Correspond- 
etice of Rufus King, IV. xxii, for evidence that this convention was 
signed without knowledge of the French treaties of April 30. 

^ On the question "Will the Senate advise and consent to the 
ratification of the 5th article? " Adams, Bradley, Dayton, Hillhouse. 
Olcott, Pickering, Plumer, Israel Smith, and Tracy voted yea. 
Of these all were Federalist except Bradley, Olcott and Smith, 
Samuel Wright of New Jersey was the only Federalist voting nay. 
Sen. E.xec. Jour., I. 463. 



148 THE SENATE AND TREATIES 

not care to run any risks in the matter, and on 
February 9, 1804, the Senate voted, 22 to 9, to 
strike the fifth article from the treaty. It was 
then unanimously agreed to advise the ratification 
of the convention with this amendment. ^ 

Although the rejection of the article concerning 
the northwestern boundary had not met with the 
approval of Madison, he at once sent to James 
Monroe, who had succeeded King at London, in- 
structions to secure the exchange of ratifications 
with the British government. In these instructions 
Madison explained the action of the Senate and ad- 
vanced four reasons which led him to think that 
the British government would accept the altera- 
tion. First, inasmuch as at the time when the in- 
structions were drawn up and the convention signed, 
neither party was aware of the conclusion of the 
treaties ceding Louisiana, it would be unreasonable 
that this convention should operate to restrict ter- 
ritorial rights gained by the United States from 
France. Second, if the fifth article were expunged 
the northern boundary of Louisiana would remain 
the same in the hands of the LTnited States as it 
had been in the hands of France; and it might be 
adjusted and established according to the same 
principles which in that case would have been ap- 
plicable. Third, there was reason to believe that 
the boundary between Louisiana and the British 
territory north of it actually had been fixed by 
commissioners appointed under the Treaty of Ut- 
recht, and that a line run in accordance with article 
five would pass through territory which on both 

' ,SV/(. Exec. Jour., I. 4G3-464. 



THE TREATIES OF THOMAS JEFFERSON 149 

sides of the line would belong to the United States. 
Fourth, the adjustment of this line would be left 
open for future negotiation — a situation which in 
the past Great Britain had seemed anxious to bring 
about. ^ 

The receipt of these instructions was acknowledged 
by Monroe in April.^ Not deeming it worth while, 
however, to press American concerns upon the de- 
clining Addington ministry, our minister took no 
steps to secure an exchange of ratifications until 
Addington had given way to Pitt, and Lord Har- 
rowby had superseded Lord Hawkesbury in the 
Foreign Office. In the new Secretary of State for 
Foreign Affairs, Monroe had to deal with one who 
regarded the United States and its aspirations with 
intolerance, if not with contempt. Moreover, as 
has been the case with some other English officials 
of small caliber, Harrowby did not consider it worth 
while to conceal his feelings from the representative 
of the former British colony. In his criticism of 
the American government for ratifying the King- 
Hawkesbury convention with the exception of the 
fifth article he certainly did not confine himself to 
''diplomatic expressions," but used language which 
Monroe deemed to be ''calculated to wound and 
irritate." 

In a letter to Madison dated June 3, Monroe re- 
ported the position taken by Harrowby on the 
practice of the Senate in ratifying treaties with 
alterations, and gave an account of his interview 
on the subject. Monroe wrote: 

1 Am. State Papers, For. Rels., III. 89-90. 

2 Monroe to Madison, April 26, 1804, Writings of James Monroe, 
IV. 170. 



150 THE SENATE AND TREATIES 

He censured in strong terms the practise into which 
we had fallen of ratifying treaties, with exceptions to 
parts of them, a practise which he termed new, un- 
authorized and not to be sanctioned. I replied that 
this was not the first example of the kind; that he must 
recollect one had been given in a transaction between our 
respective nations in their treaty of 1794; that in that 
case the proposition for a modification in that mode was 
well rec'd, and agreed to; that to make such a proposi- 
tion was a proof of an existing friendship & a desire to 
preserve it; that a treaty was not obligatory 'till it was 
ratified, and, in fact was not one 'till then. He said that 
the doctrine was not so clear as I had stated it to be ; 
that there were other opinions on it, and seemed to 
imply, tho' he did not state it, that an omission to ratify 
did an injury to the other party of a very serious kind. 

Monroe then explained why the fifth article had been 
excepted from the ratification, after which Harrowby 

observed with some degree of severity in the manner, 
in substance, as well as I recollect, that, having dis- 
covered since this treaty was formed, that you had ceded 
territory which you do not wish to part from, you are 
not disposed to ratify that article. 

Monroe denied this and advanced the arguments 
set forth in his instructions. The Englishman, 
however, ''repeated again the idea which he first 
expressed, implying strongly that we seemed de- 
sirous of getting rid of an article in finding that it 
did not suit us." ^ 

' Monroe to Madison, June 3, 1804. Am. State Papers, For. 
Rels., III. 92-94. It is only fair to add that on .Juno 23 Monroe 
wrote that he had come to the conclusion that Harrowby's ill man- 
ners during the above described interview were due to a state of 
mind which he was in at the time and were the result of a momentary 
impulse rather evidence of an unfriendly policy, towards the United 
States. Monroe to IMadison, June 23, 1804, Wiititiqs of Jaines 
Monroe, IV. 197 n. 



THE TREATIES OF THOMAS JEFFERSON 151 

Although this unfriendly and uncompromising at- 
titude on the part of the British ministers made 
Monroe's task exceedingly disagreeable, he con- 
tinued to urge an acceptance of the amended treaty. 
On September 1 in a long interview concerning the 
various points at issue between the two countries 
he repeated all of his arguments, and afterwards 
sent them in written form for submission to the 
cabinet.^ But Harrowby and the ministry were 
not to be moved. Instructions addressed to An- 
thony Merry, British Minister at Washington, 
under the date of November 7, 1804, stated that his 
Majesty's government would at all times be ready 
to reopen the whole subject: 

but they can never acquiesce in the precedent which in 
this as well as in a former instance the American govern- 
ment has attempted to establish, of agreeing to ratify 
such parts of a convention as they may select, and of 

1 Writings of James Monroe, IV. 245. Monroe to Madison, 
September 8, 1804. Am. State Papers For. Rels., III. 95-98. Mon- 
roe reported his action at this time in the following words: "We 
then proceeded to examine the convention respecting the boundaries 
in the light in which the ratification presented it. On that subject 
also I omitted nothing which the documents in my possession 
enabled me to say; in aid of which I thought it advisable, a few 
days afterwards, to send to his Lordship a note explanatory of the 
motives which induced the President and the Senate to decline 
ratifying the fifth article. As the affair had become by that cir- 
cmnstance in some degree a delicate one, and as it was in its nature 
intricate, I thought it improper to let the explanation which I had 
given rest on the memory of a single individual. By committing 
it to paper, it might better be understood by Lord Harrowby and 
the cabinet, to whom he will doubtless submit it." A copy of this 
paper was sent to Madison. It traces the history of the boundary 
line in question and explains why the fifth article of the convention 
was rendered nugatory by the cession of Louisiana. 



152 THE SENATE AND TEEATIES 

rejecting other stipulations of it, formally agreed upon 
by a minister invested with full powers for that purpose.^ 

The matter of the boundary was not again pressed, 
however, until the Grenville ministry was formed 
in 1806. Monroe then outlined the situation to 
Charles James Fox as soon as that statesman had 
taken possession of the seals of the foreign office. - 
In February he submitted to Fox a review of the 
previous negotiations between himself, and Hawkes- 
bury and Harrowby. In this document he re- 
iterated the familiar arguments for the ratification 
of the boundaries convention minus the fifth article.^ 
But the new ministry proved to be as reluctant to 
countenance this innovation in treaty-making as 
had been the old. Fox, to be sure, was more courte- 
ous — conciliatory was the word Monroe used — 
than his predecessor had been; ■* but the treaty was 
not ratified. In May, when Pinckney was sent to 
join Monroe in an effort to settle the difTerences 
between the two nations, the latter was given a 
special instruction with reference to this question. 
If the British government declined to ratify with 
the omission of the fifth article, and was willing to 
do so with a proviso ''against any constructive 

1 Adams, History of the Uriited States, II. 424:. Reference to MS. 
British Archives. In October Monroe left London on a special 
mission to Madrid, after having left open for future negotiation this 
and other questions pending between England and the United States. 
Monroe to Madison, October 3, 1804. Atn. State Papers, For. Rets., 
III. 98-99. 

=> Monroe to Madison, February 12, 1806. Ibid., pp. 112-3. 

3 Monroe to C. J. Fox, February 25, 1806. Ibid., pp. 113-114. 

^ Monroe to Madison, March 11, 1800. MS. Department of 
State, England, 12, James Monroe. 



THE TREATIES OF THOMAS JEFFERSON 153 

effect of the Louisiana convention on the intention 
of the parties at the signature of the depending 
convention" he was to "concur in the alteration 
with a view to bring the subject in that form be- 
fore the ratifying authority of the United States."^ 
This proposition, however, probably never was 
presented to Fox, who was taken ill soon after the 
arrival of Pinckney in London.' After the un- 
fortunate Monroe-Pinckney treaty had been signed 
negotiations were entered into for a supplemental 
convention relative to boundaries.^ But the ef- 
fort produced no settlement and the matter was 
reserved for future discussion. 

The King-Hawkesbury convention, however, was 
now finally recognized by the United States to be 
impossible of perfection. The subsequent history 
of the boundary controversy suggests very forcibly 
that at this time England may have been glad of 
a legitimate excuse for not ratifying the convention 
which Hawkesbury had signed. The rejection by 
the Senate of Article 5 gave her such an excuse 
— one probably all the more appreciated because it 
enabled her to put the United States in the wrong 
in the matter. This was not the last occasion 
upon which the action of the United States Senate 
gave to another nation the opportunity to retire 
gracefully from an agreement which it had come to 
regret. 

As has been said, the King-Hawkesbury conven- 

1 Madison to Monroe, May 15, 1806, Am. State Papers For. 
Rels. III. 119. 

2 Ibid., pp. 128-132 passim. 

3 Monroe and Pinckney to Madison, April 25, 1807. Ibid., p. 162. 



154 THE SENATE AND TREATIES 

tion was the first treaty to remain unperfected "be- 
cause the other party refused to acquiesce in a 
qualified ratification bj^ the United States. Further, 
this is the only occasion upon which another govern- 
ment has ever declined to proceed with ratification 
for the simple reason that it refused to accept 
the principle, that on account of its constitutional 
system the United States should be allowed to 
modify in ratification a treaty signed by its ministers 
in accordance with their instructions. Lord Har- 
rowby's remarks to Monroe on this subject were 
not marked by the depth of the scholar, the suavity 
of the diplomat, or the vision of the statesman. 
Undoubtedly, however, he spoke truly when he 
told the American minister that the practice into 
which his country had fallen of ratifying treaties 
with exceptions to parts of them was new and un- 
authorized.^ It was new because, until the Con- 
stitution of the United States had given to the 
Senate a voice in treaty-making, the nations of the 
world had commonly granted to those parts of their 
governments which negotiated treaties, authority to 
ratify them; and with rare exceptions treaties were 
ratified as signed. It was unauthorized because by 
the then generally accepted rules of international 
law a sovereign was bound to ratify what his min- 
ister, acting under full powers and within his in- 
structions, had agreed to. Failure to ratify without 
extremely cogent reasons for refusal might be con- 
sidered as a grave breach of faith. When Harrowby 
intimated that "an omission to ratify did an injury 

' See Moore, Irdernalional Law Digest, V. 184-202, for thorough 
discussion of this jjoiiit in internal ional law. 



THE TEEATIES OF THOMAS JEFFERSON 155 

to the other party of a very serious kind" he was 
only expressing the generally accepted doctrine of 
his time. 

The United States, in fact, was introducing a new 
principle into the diplomatic practice of the world. 
She had made her treaties a part of the supreme 
law of the land and therefore had given to the upper 
chamber of her legislature a part in enacting them. 
She was a federal state and as such had given to the 
representatives of her component parts a voice in 
making the treaties which bound them. She was 
a democracy and as such had declined to entrust 
the superlatively important function of treaty- 
making to the executive alone. Thus the very 
terms of her being went far towards determining 
the manner in which her relations with the other 
members of the family of nations were to be carried 
on. But as she was the first of her kind, the pre- 
existing rules of international intercourse made no 
provision for her unique method of making treaties, 
and when the action of her Senate made it necessary 
for her executive either to offer to ratify a treaty 
with modifications or to decline ratification at all, 
this method brought her into conflict with the 
established order of things. 

In these circumstances it was inevitable that, 
sooner or later, she would encounter a Lord Har- 
rowby. For in this situation his Lordship occupied 
a position for which he was eminently fitted and 
which he doubtless would have been proud to fill — 
that of the champion of things as they are. Hence 
his declaration that the American practice not only 
was new and unauthorized, but was not to be 



156 THE SENATE AND TREATIES 

sanctioned. In the case of the King-Hawkesbury 
convention the estabhshed order of things pre- 
vailed; the modified treaty never was perfected. 
But that which the British minister lacked the 
vision to see came to pass. Upon many later 
occasions Senate amendments to treaties were sub- 
mitted to the other party to the agreements ac- 
companied by lengthy explanations of the features 
of the governmental system of the United States 
which put it in the power of the Senate to compel 
such action. And in due time the world consented 
to deal with the United States in the manner made 
necessary by her form of government. To-day 
what British ministry ^ would attempt to force the 
United States, with her system of treaty-making, 
into the mold provided for those states which still 
perform this function of government under the 
ancient principles? Indeed, England and practic- 
ally every other democracy have now provided 
some method by which the representatives of the 
people may have a voice in determining what 
manner of treaties shall be made. The success 
of the American experiment demonstrated the prac- 
ticability of such a system, and paved the way for 
similar democratic developments in other nations. 

JOHN QUINCY ADAMS AND THE TREATY OF 
1805 WITH TRIPOLI 

Although finally ratified without amendment, 
the treaty of peace, amity, and commerce concluded 

^ Henry Cabot Lodge's admirable essay, "The Treaty-making 
Powers of the Senate," Avas occasioned by such a misunderstanding 
on the part of Lord Lansdowne in 1901, however. 



THE TEEATIES OF THOMAS JEFFERSON 157 

with Tripoli June 4, 1805, was before the Senate 
from December of that year until the following 
April, and was the subject of prolonged and acri- 
monious debate in that body.^ By their insatiable 
greed and unfailing bad faith, the piratical rulers 
of the Barbary states finally had convinced the 
government of the United States that one fight 
would be cheaper than continual blackmail — 
that it would cost less to win a peace than annually 
to buy one. Consequently in the spring of 1805 
practically every sea-going vessel in the American 
navy was in the Mediterranean, for the purpose 
of bringing to a successful conclusion the naval 
campaign which had been carried on for several 
years. Pressure of the fleet, and fear of a band of 
adventurers under the leadership of William Eaton, 
an American soldier of fortune, and Hamet Cara- 
malli, a rival claimant of the throne, finally brought 
the ruling Bashaw of Tripoli to the point of con- 
sidering a permanent treaty of peace with the 
United States. This treaty was signed by Tobias 
Lear, of unhallowed memory. Although nego- 
tiated at the cannon's mouth it provided that the 
United States should pay a ransom of sixty thousand 

1 Our diplomatic relations with Tripoli and the other Barbary 
powers are traced in Lyman, Diplomacy of the United States, II. xiii; 
the various treaties and other original material are here printed. 
Gardner W. Allen, in Our Navy and the Barbary Corsairs, presents 
both the naval and diplomatic phases of the question. Chapters VI 
to XV cover our relations with Tripoli during this period. See 
also Adams, History of the United States, II. xviii; McMaster, 
History of the People, III. xviii; Schouler, History of the United 
States, II. vi; Hildreth, History of the United States, V (Vol. II; 
2d series) xvii, xviii; Channing, The Jeffersonian System., Ch. III. 
Humphreys, The Life of David Humphreys, II. ix-xi. 



158 THE SENATE AND TREATIES 

dollars for the crew of the frigate Philadelphia. 
Also it left Eaton and Caramalli, with their followers, 
to shift for themselves under conditions which by 
many were thought to be as disgraceful to the 
United States as they were disastrous to those in- 
dividuals. The treaty, to be sure, provided that 
in case Caramalli withdrew from Tripoli, the reign- 
ing Bashaw should return to him his wife and chil- 
dren, who had been held as hostages. But the 
faithless Lear on the same day had signed an agree- 
ment that this delivery need not be made for four 
years. Neither the other Americans on the ground 
nor the United States government was informed of 
this act.^ 

The opposition to the ratification of Lear's 
treaty seems to have rested upon three grounds. 
The first two concerned the treaty itself: It was 
deemed subversive of the honor and interests of 
the United States for it to buy a peace when it 
was in a position to secure one by force of arms; 
furthermore, the stipulation that the wife and 
children of Caramalli be returned to him not having 
been fulfilled, many Seifitors were of the opinion 
that until they were the treaty should not be rati- 
fied. If John Quincy Adams was correct in his 
deductions, ratification was also opposed, or at 
least its delay was advocated, because "the Mediter- 
ranean fund, of two and a half per cent additional 
duty, was by the terms of the law to cease three 
months after the ratification of the peace with 
TripoU." 2 

1 Sen. Exec. Jour., II. 38. 

* Memoirs of John Quincy Ada7ns, I. '434. 



THE TREATIES OF THOMAS JEFFERSON 159 

A study of the proceedings of the Senate with 
reference to this treaty discloses the extent to which 
personal feeUng, party politics, and the activities of 
the Senate in its legislative capacity may determine 
its action upon treaties. When submitted, Decem- 
ber 11, 1805, the treaty was referred to Smith of 
Maryland, Tracy of Connecticut, and Worthington 
of Ohio, who considered it a week and then reported 
a resolution of advice and consent to ratification.^ 
A few days later Tracy, the minority member of 
the committee, submitted a resolution which re- 
flected the feelings of those senators who were 
dissatisfied with the management of the entire 
matter. This resolution, which with shght altera- 
tions was adopted three days later, is quoted as 
introduced both because it indicates the nature of 
the opposition to the ratification of this treaty and 
because it is an excellent example of the wide range 
of information which the Senate has always felt it 
proper to demand from the executive: 

Resolved, That the President of the United States be, 
and he is hereby, requested to cause to be laid before 
the Senate, the instructions which were given to Mr. 
Lear, the Consul General at Algiers, respecting the 
negotiations for the treaty with the Bey and Regency 
of Tripoli; which treaty is now before the Senate for 
their consideration; and, also, the correspondence of the 
naval commanders, Barron and Rodgers, and of Mr. 
Eaton, late Consul at Tunis, respecting the progress of 
the war with Tripoli, antecedent to the treaty, and re- 
specting the negotiations for the same; and whether the 
wife and children of the brother of the reigning Bashaw 
of Tripoli, have been delivered up, pursuant to the stipu- 
lation in said treaty; and what steps have been taken to 
1 Sen. Exec. Jour., II. 3, 4, 9. 



160 THE SENATE AND TREATIES 

carry the said stipulation into effect; and als(5, to lay 
before the Senate any other correspondence and informa- 
tion, which, in the President's opinion, may be useful to 
the Senate, in their deliberations upon said treaty.^ 

After a delay of two weeks Jefferson responded 
to the general demand for information in two 
messages on the subject. One was addressed to 
both Houses of Congress and was an explanation 
of the cooperation of the United States and Hamet 
Caramalli against Tripoli, It also laid before the 
legislature an application for assistance from our 
former ally, or shall we say cooperator, who at 
this time was finding it difficult to live as a sovereign 
prince upon a ''pension of 150 cents per day." ^ 

The other message was to the Senate in its ex- 
ecutive capacity, and stated that so far as the 
papers which had been asked for w^ere available 
they were laid before it.^ The reading of these 
papers consumed the remainder of the session and 
occupied three hours on the day following.^ After 
debate covering two days, on motion of Bradley of 
Vermont, both messages were referred to a select 
committee composed of Bradley, Wright, Baldwin 
of Georgia, Smith of Maryland, and Tracy of Con- 
necticut. Of these Tracy was the only Federalist, 
while Bradley, Smith, and Baldwin were among the 
leaders of the Republicans in the Senate.'' 

' Sen. Exec. Jour., II. 12. 

- Caramalli's petition to the people of the United States, in 
Lyman, Diplomacy of (he United States, II. 391, n.; Annals of Con- 
(jre.'is, 180.5-1806, pp. 4S-.50. 

3 Sen. Exec. Jour., II. 14. 

■■ Memoirs of John Quincrj Adams, I. 382-383. 

^ Sen. Exec. Jour., II. 14-15. 



THE TREATIES OF THOMAS JEFFERSON 161 

If the actions of a body of men are any index to 
their sentiments, it is fairly evident that this com- 
mittee doubted the sincerity of Jefferson's state- 
ment that he had laid before the Senate all papers 
which could assist them in passing judgment on 
the treaty and the claims of Caramalli. For on 
the twentieth they secured the passage of a resolu- 
tion requesting him to transmit copies of eight par- 
ticular documents, which they described in great 
detail.^ Two weeks later the desired papers, or 
extracts therefrom, were submitted with a state- 
ment that the latter contained everything relating 
to the case of Caramalh to be found in the original 
documents.- 

After this the treaty was discussed upon several 
occasions, but no further action was taken until 
Bradley of the committee brought in a resolution 
to postpone further consideration until next session; 
to request the President in the meantime to as- 
certain whether the wife and children of Hamet 
Bashaw had been delivered up to him, and if not, 
why not; and to cause this information to be laid 
before the Senate. The motion for this resolution 
was ordered to lie for consideration.^ 

In the meantime this same committee had been 
carefully considering the application of the aban- 
doned cooperator. Three days later Bradley pre- 
sented a report and a bill on the subject.^ The 

1 Sen. Exec. Jour., II., 17. ^ /^^^^.^ p. 20. ^ j^d., p. 28. 

^ Of the report Pickering wrote to Rufus King as follows: " It is 
drawn, substantially by Bradley, and agreed to by all of the com- 
tee. (As Tracy tells me) except Baldwin." Pickering to King, 
March 21, 1806. Life and Correspondence of Rufus King, IV. 505. 



162 THE SENATE AND TREATIES 

report outlined the dealings of the American diplo- 
matic and naval officials with Caramalli, presented 
his case as that of a much injured individual, and 
laid the burden of blame for the whole afTair upon 
Tobias Lear.^ The bill provided for substantial 
relief for the injured ex-Bashaw. 

The bill came up for third reading on March 31.^ 
During the several daj^s of debate which followed, 
Adams bore the chief burden of battle in opposition 
to the bill and to the report of the committee. 
The objection seems to have been not so much to 
an appropriation for the relief of Caramalli as 
against the report which based his claim upon 
right and justice, and not upon the liberality and 
magnanimitj" of the United States. Adams also 
defended Lear in the course he had taken in con- 
cluding the treaty.'^ 

1 Lear, in fact, was censured both for abandoning the ex-Bashaw 
and General Eaton, and for agreeing to pay 160,000 for the American 
prisoners. The report severely criticized his course from beginning 
to end, and probably expressed with fair accuracy the disgust of 
a considerable number of Senators with the treaty and the method 
of its negotiation. Annals of Congress, 1805-1806, pp. 185-188. 

2 Ibid., p. 210. 

^ Of his speech of April 1 against the bill Adams wrote, "The 
Invalid bill passed as amended by the committee of the Senate, 
with some little debate. I was unable to give it proper attention, 
being employed in prepai'ing to meet the bill in favor of Hamet 
Caramalli. This was taken up soon after twelve o'clock. Mr. 
Bradley, the chairman of the committee which reported the bill, 
made a speech of about an hour and a half in support of the report 
accompanying the bill and in answer to my yesterday's objections 
and those of Mr. Baldwin. I replied in a speech of about the same 
length, and endeavored to j^rovo, by recurrence to the document.s, 
that the report was erroneous in all its parts." Memoirs of John 
Qnincy Adams, I. 425. This speech was reported iu Annals of 
Congress, 1805-1806, pp. 211-224. On April 2 Adams recorded 



THE TREATIES OF THOMAS JEFFERSON 163 

Adams and Sumter and those of their way of 
thinking seem to have had the better of the debate, 
for Sumter's motion to recommit the bill, report, 
and documents prevailed against stern opposition. 
The vote was 14 to 15, with four of the six Federalists 
present among those who supported Bradley and 
his committee.^ A question then arose whether the 
reference was to the same committee or to a new one. 
The decision of the Senate was a final blow to the 
pride of Bradley and his friends, and apparently a 
source of considerable satisfaction to Adams, who 
that night made the following entry in his diary: 

It was finally referred to the same [committee], with 
the addition of two new members — General Sumter 
and myself. S. Smith, who was on the former committee, 

in his diary, "about one the bill in favor of Hamet Caramalli was 
again taken up, and Mr. Wright, in a speech of more than two 
hours, replied to my yesterday's objections. He abandoned, 
however, almost the whole ground taken by the committee, and 
placed the claim upon a foundation altogether different. Mr> 
Bradley began to propose amendments to his own bill. General 
Sumter opposed them, on the ground that the bill was connected 
with the report, which he disapproved in all its parts. Senate 
adjourned without a decision. Mr. Baldwin and Mr. Sumter came 
to me after adjournment, and consulted with me how we could 
dismiss the bill so as to show our dissent from the report and yet 
do something for the Tripolitan ex-Bashaw who, as all agree, has 
some claim upon our generosity. By agreement with them I agreed 
to call on Mr. Madison, who, from his knowledge of all the circum- 
stances, might suggest something which we may adopt. I called 
on him accordingly this evening, and he appeared to be well pleased 
that something temporary, like what General Sumter has sug- 
gested, should be agreed to. He expressed himself with his usual 
caution, but with disapprobation of the report. ..." Memoirs 
of John Quincy Adams, I. 426. 

1 Annals of Congress, 1805-1806, p. 225. Memoirs of John 
Quincy Adams, I. 427. 



164 THE SENATE AND TREATIES 

offered to excuse himself, being now President pro tern.; 
but Mr. Tracy, complaining that the feelings of the 
committee had been injured, urged Smith not to excuse 
himself. So that he agreed still to serve. ^ 

The addition of these two gentlemen could hardly 
be expected to increase the harmony of the com- 
mittee. Sessions were held on the fifth, the seventh 
and the ninth of April, and according to Adams's 
descriptions were marked by violence of language 
and bitterness of feeling. All of the members of 
the old committee but Wright are reported to have 
become extremely anxious to postpone the whole 
matter until the next session. Adams and his 
followers desired to withdraw both the bill and the 
report and to make mere temporary provision for 
Caramalli. When Adams was not in the Senate, 
or meeting with the committee, he seems to have 
been interviewing naval officers, or looking up 
records for evidence to support his contentions. 
But even John Quincy Adams did not have the 
gift of omnipresence, and on the ninth, while he was 
at the auditor's office examining the state of Mr. 
Eaton's accounts Bradley hurried through the Senate 
a resolution which postponed further consideration 
of the bill and the raport until the first Monday of 
the following December. - 

1 Memoirs of John Quincy Adams, I. 427-428. 

2 Adams's explanation of how the accident occurred is worth 
reading. The entry for April 9 begins, "I called again this morning 
at the Auditor's office, to examine the state of Mr. Eaton's accounts, 
and obtained part of the information I want. This, however, 
delayed me so that I could not attend the committee on the bill in 
favor of Hamet Caramalli. I got to the Capitol about twenty 
minutes after the hour at wliich the Senate meets and found that 



THE TREATIES OF THOMAS JEFFERSON 165 

In the midst of this bitter fight in legislative 
sessions over the report on the negotiation and the 
treaty, and the bill for Caramalli's relief, the treaty 
itself was brought up again for consideration by the 
Senate in its executive capacity. It will be re- 
membered that on March 14, three days before the 
introduction of the report on the claims of Cara- 
malli, Bradley had introduced a resolution to 
postpone consideration of the treaty until the next 
session, and for other purposes. On April 7 con- 
sideration of this resolution was resumed.^ As 
might be expected the proponents of the report 
were the opponents of the treaty. At this point 
appears the third ground for opposition to im- 
mediate ratification, for Adams reports Bradley to 
have finally made ''the avowal that the two and a 
half per cent additional duty, which by law must 
cease three months after the proclamation of peace, 
is wanted for other purposes, and is a further in- 
ducement to postpone." ^ 

On the following day the resolution to postpone 
was rejected, twenty to ten, ''after a long and 
animated debate." Tracy and Wright were the 
only members of the committee who voted with 
Bradley on this question.^ And yet Adams, al- 
ways suspicious, still expected that the matter 
would be postponed. That night he wrote: 

the committee had taken advantage of my absence to report a 
postponement of the subject until the next session, which the 
Senate had agreed to." Memoirs of John Quincy Adams, I. 432. 
Also Annals of Congress, 1805-1806, p. 231. 

1 Sen. Exec. Jour., II. 31. 

■' Memoirs of John Quincy Adams, I. 431. 

3 Ihid; o-t-.. Exec. Jour., II. 31. 



166 THE SENATE AND TREATIES 

Yet from the complexion of the votes, I think it will 
end in that. The Presidential votes were for postpone- 
ment. I mean by this, the men who get in whispers 
his secret wishes, and vote accordingly. Hence I con- 
clude the Treaty shall not be ratified. And the true 
reason is to avoid the discontinuance of the two and a 
half per cent.^ 

Bradley's resources, indeed, had not been ex- 
hausted with the defeat of his motion to postpone. 
Its rejection was followed by an unsuccessful at- 
tempt to make ratification contingent upon the de- 
livery of the ex-Bashaw in accordance with the 
third article of the treaty.^ On the twelfth, how- 
ever, the proposed amendment was voted down, 
and in the face of opposition at every step the 
resolution to advise and consent to the ratification 
of the treaty as signed was passed, 21 to 8.^ 

Adams's final comments on the proceedings reveal 
the tenseness of the struggle. He wrote: 

•Precisely at twelve I moved to go upon executive 
business, and the Treaty with Tripoli was taken up. 
Mr. Bradley, who had obtained leave of absence after 
Monday next, went away last night. Mr. Wright's 
amendment, to make the ratification conditional on the 
delivery of Hamet's wife and children, was first debated, 
and rejected, twent}^ to nine. Mr. Smith of Ohio then 
moved a postponement to the first Tuesday in Decemljer 
next; and just at six o'clock p.m. the question on the 
ratification was taken and passed — twenty -one to eight. 
The debate was very warm, zealous and vehement — 
General Sumter and myself in favor of the ratification; 
Messrs. Wright, Adair, White, Smith of Ohio, Tracy, 
and Pickering against it. The speeches of these gentle- 

1 Memoirs of John Quincy Adams, I. 431 . 

2 Sen. Exec. Jour., II. 31. ^ ;^,y^ p,, ^^-62. 



THE TEEATIES OF THOMAS JEFFERSON 167 

men, excepting Smith and Tracy, were as much at me as 
to the questions in discussion; to Mr. Tracy and Mr. 
Pickering I made no reply. It was seven in the evening" 
before I got home.^ 

On the nineteenth Adams again expressed his con- 
viction that the desire to continue in operation the 
law providing for the ''Mediterranean fund" was 
the real reason for the opposition to ratification. 
He wrote, 

The Mediterranean fund, or two and a half per cent, 
additional duty, was by the terms of the law to cease 
three months after the ratification of the peace with 
Tripoli. This was the principal real obstacle to the rat- 
fication, but did not eventually prevail. We advised 
the ratification last Saturday.^ 

There seems to be no additional evidence to show 
that Adams was justified in his belief that the 
desire to continue this augmented duty was at the 
bottom of the opposition to the treaty. Certainly 
it is hard to beheve that Jefferson was secretly in- 
triguing for its defeat. The sixty thousand dollars 
had been paid; the American fleet in the Mediter- 
ranean had been greatly reduced and the failure 
of the treaty almost certainly would have caused 
the administration much additional expense and 
anxiety at a time when all of its energy and re- 
sources were needed in other directions; Jefferson 
was the last man to fight any one on a question of 
national "honor" and would have preferred to have 
had his navy ''hauled up" than on the high seas. 
But whether Adams was totally or only partially 
wrong in his surmises there seems to be little ques- 

1 Memoirs of John Quincy Adams, I. 433. ^ Ibid., p. 435. 



168 THE SENATE AND TREATIES 

tion that the treaty owed its ratification in large 
part to his activity — a fact which did not improve 
the already strained relations between him and his 
party. After the ratification of the treaty Adams 
brought in a bill for the temporary relief of Hamet 
Caramalli which passed before the end of the 
session.^ 

The Tripolitan treaty of 1805 was the last treaty 
to be considered by the Senate for a period of 
almost ten years. It has been deemed worth while 
to trace in detail the action of the Senate upon it 
because it illustrates the operation of the treaty- 
making power of the Senate as it was then exercised, 
and because it also gives some idea of the complex 
forces that work for or against even the most simple 
treaty when it is before the upper house. 

1 Annals of Congress, 1805-1806, pp. 242, 244, 246, 1106. 



CHAPTER VIII 

The Genesis of the Senate Committee 
ON Foreign Relations 

Between December, 1805, and February, 1815, 
no treaty was laid before the United States Senate 
for its constitutional action. Yet there are few 
periods in the history of this country during which 
its relations with the governments of Europe played 
a greater part in the political, social, and economic 
life of the people, or exercised a more potent in- 
fluence on the destiny of the nation. For ten years 
preceding the Treaty of Ghent, at every session of 
Congress a large proportion of the most important 
business transacted had to do with French decrees 
and British orders in council, with impressment, 
with Spanish aggressions on the southern border 
with the Barbary corsairs, with embargoes, with en- 
forcement acts, with the privileges of foreign min- 
isters, with the maintenance of neutrality, with 
wars and rumors of wars. Domestic politics turned 
on foreign issues; the greatest men in both parties 
gave to foreign affairs their first thought and their 
gravest attention. It was during this decade, as 
crowded with diplomatic strivings and international 
activity as it was devoid of international agree- 
ments, that the Committee on Foreign Relations of 
the United States Senate came into being. 

169 



170 THE SENATE AND TREATIES 

The antecedents of the committee, however^ 
must be sought in the records of the earhest years 
of government under thie Constitution.^ The prac- 
tice of referring the business of treaty-making to 
select committees began with the reception of the 
first Presidential message on the subject. During 
Washington's administrations, however, there was 
no standing rule providing for such reference, and 
committees were used when and as the Senate saw 
fit — as the convenience of the moment dictated. 
But even in these circumstances there appears to 
have been a strong tendency to concentrate re- 
sponsibility in treaty affairs in the hands of a few 
men. During the first eight years of the govern- 
ment eighteen treaties with Indian tribes and 
foreign nations - were submitted to the Senate for 
its advice and consent to ratification, and its advice 
was sought in the interpretation of one other treaty. 
In the consideration of these nineteen treaties the 
Senate employed nineteen committees, to which 

1 McConachie, Congressional Committees, A Study of the Origins 
and Development of our National and Local Legislative Methods, 
devotes Chapters VIII and IX to the committee system of the 
Senate. The first of these discusses sectionalism as it has been 
manifested in the committee, the several methods by which com- 
mittees have been chosen, and the relation of the system to political 
parties. The second, entitled "Interior Organization," treats of 
procedure, majority and minority representation, the organization 
of the committees themselves and their relation to the business of 
the Senate. Very little attempt is made to trace historically the 
rise of the committee system or of any one committee. Harlow,. 
The History of Legislative Methods for the Period Before 1825, Chs. XII. 
and XIII. traces the development of the Standing Committees of 
the House of Representatives. 

2 This includes additional articles upon which the Senate took 
separate action. 



SENATE COMMITTEE ON FOREIGN RELATIONS 171 

were referred questions connected with the nego- 
tiation, ratification, or interpretation of eleven dif- 
ferent treaties. The total membership of these 
nineteen committees was sixty-eight, while sixty-six 
individuals served in the Senate during these years. 
Yet these sixty-eight committee places were filled 
by just twenty-four Senators; that is, two more 
than a third of the Senate membership did all of 
the committee work on foreign and Indian treaties. 

Nor do these figures tell the whole story of speciali- 
zation and concentration of power in this field. Of 
the twenty-four Senators who served on these com- 
mittees, five held more than half of the sixty-eight 
places. These five were the most powerful Federal- 
ist members of the upper house. Caleb Strong 
served on nine committees, Robert Morris on eight, 
Rufus King and Ohver Ellsworth on seven each, 
and George Cabot on four. Nor is the situation 
altered when only those committees which acted 
upon treaties with foreign nations are considered. 
There were ten such committees, whose member- 
ship totaled forty-two, and upon which sixteen dif- 
ferent individuals served. The five Federalist 
friends whose names have been mentioned held 
twenty-six of these forty-two places. In addition 
they were primarily responsible for the Jay Treaty 
from the conception of the idea to the ratification 
of the completed instrument — and this despite the 
fact that the Senate appointed no committee on 
this matter. 

These facts would seem to lead to the conclusion 
that during Washington's administrations there was 
a comparatively small group of members to whom 



172 THE SENATE AND TREATIES 

the Senate regularly intrusted a large part of the 
work which devolved upon it in the performance of 
its treaty-making functions, and to whom it habitu- 
ally looked for guidance in this field. It is evident, 
however, that it did so not in accordance with any 
rule or fixed precedent, perhaps not even con- 
sciously, but simply because this was the easiest 
method of transacting this sort of business. It 
was only through succeeding years that the Senate 
established a standing committee which assisted it 
in the consideration of all problems of foreign af- 
fairs in accordance with a regular procedure. 

In further tracing the development of this com- 
mittee, attention must be given not so much to 
the activities of the Senate in the negotiation and 
ratification of treaties, as to the manner in which 
the upper house performed its more genuinely 
legislative functions. During the first twenty-five 
years of its existence it considered measures having 
to do with foreign affairs more frequently in legis- 
lative than in executive session. And it is an in- 
teresting fact that the Foreign Relations Committee, 
which to-day is usually thought of as a committee 
primarily for the consideration of treaties, really 
grew directly out of the legislative rather than the 
executive activities of the Senate.^ 

^ It should be noted that during the whole of the period under 
consideration Senate committees were chosen bj' ballot, a plurality 
of votes electing. In December, 1805, John Quincy Adams ob- 
served, in his diary: "As our committees are all chosen by ballot 
the influence and weight of a member can very well be measured 
b.y the number and importance of those of which he is a member." 
He added, "In this respect I have no excitements of vanity." Mem- 
oirs of John Qiii)ir!/ Adains, I. 329. 



SENATE COMMITTEE ON FOREIGN RELATIONS 173 

As has been indicated in the case of treaties , in 
no sense was there a standing committee to which 
all business involving foreign relations was regularly 
referred. In many instances important matters of 
this sort were acted upon by the Senate without 
the assistance of any committee, and lengthy and 
weighty communications from the Executive ex- 
plaining the labors of our diplomatic representatives 
abroad frequently were read and discussed on the 
floor without any suggestion that they be referred 
to any smaller body of Senators. Frequently 
select committees were raised to consider particular 
problems, and with rare exceptions they went out 
of existence with the solution of those problems. 
In a few instances, however, such a committee 
might be continued throughout a session, either be- 
cause the business referred to it was not more quickly 
concluded, or because new references of matters 
more or less germane to the original subject were 
made to it from time to time. It is in these ex- 
ceptional instances that are to be found the earliest 
steps in the evolution from the temporary, select 
committee on some specific question, to the standing 
committee on foreign relations to which all business 
concerning foreign affairs invariably was referred. 

The first committee of this exceptional character 
existed during the third session of the first Congress. 
In his annual message, delivered December 8, 1790, 
Washington called the attention of Congress to 
the distressed condition of American commerce in 
the Mediterranean, and recommended that measures 
be devised for its relief and protection.^ A week 

1 Annals of Congress, 1789-1791, II. 1730. 



174 THE SENATE AND TREATIES 

later the Senate ordered that ''Messrs. Langdon, 
Morris, King, Strong, and Ellsworth be a committee 
to consider that part of the President's speech which 
refers to the commerce of the Mediterranean." ^ 
The form of this order is worthy of note, because 
it was in this manner that the Senate in later years 
raised the committees which developed into the 
Committee on Foreign Relations. In fact, the entire 
standing committee system of the Senate grew out 
of the reference of particular parts of the annual 
messages to select committees. This practice, how- 
ever, did not become general until after 1797. 

The particular committee here under discussion 
continued in active existence throughout the session, 
and possessed a greater number of the character- 
istics of the later standing committees than did any 
committee raised for ten years afterwards. To it 
was entrusted all of the business concerning Ameri- 
can captives in Algiers, the protection of iVmerican 
trade in the Mediterranean, and our commercial 
treaty with Morocco.- Each matter was referred as 
it arose, and the Senate usually named the com- 
mittee as that "appointed on the 15th day of 
December to consider that part of the President's 
Speech which relates to the commerce of the 
Mediterranean." 

At the beginning of the next session of Congress 
six committees were appointed to consider particular 
matters of business mentioned in the President's 

^ Annals of Congress, 178&-1791, p. 1735. 

^ Ibid., pp. 1740-1741; 1744, 1749, 1753, 1763, 1773-1776; 
Comjnlation of Reports, Sen. Com. For. Rels., IV., 5-6; Sen. Exec. 
Jour., I. 72, 78. 



SENATE COMMITTEE ON FOEEIGN RELATIONS 175 

address, but with the possible exception of one on 
consuls and vice-consuls, none of these had to do 
with treaties or foreign relations.^ Shortly after- 
wards, however, a petition asking that Congress 
reimburse private individuals who had ransomed an 
American captive at Algiers was referred to a com- 
mittee with the same personnel as the Algerine 
committee of the preceding session, except that 
Butler was substituted for Ellsworth. During the 
remainder of the session all business pertaining to 
Algiers was referred to this group.- At the same 
time, however, other matters concerning our re- 
lations with foreign nations were referred to other 
select committees, so that in neither session did 
there exist a body which with any degree of accuracy 
could be called a committee on foreign relations. 

The non-existence during this period of any such 
committee may be admirably illustrated by a re- 
currence to the proceedings of the Senate during 
the first session of the third Congress. During this 
session of 1793-1794 the situation was tense between 
the United States and France, England, and Spain, 
and much of the time of Congress was occupied 
with foreign affairs. On December 5, 1793, Wash- 
ington conmiunicated a message with a great mass 
of papers upon French-British- American relations. 
These were soon followed by a similar communica- 
tion upon Spanish affairs. On January 15 addi- 
tional papers revealing the situation between the 
United States and France were sent in, and on the 

1 Annals of Congress, 1791-1793, pp. 24-25. 

2 Ibid., pp. 26, 29, 41; Compilation of Reports, Sen. Com. For. 
Rels., VIII. 6; Se7i. Exec. Jour., I. 91. 



176 THE SENATE AND TREATIES 

day following a message with further documents 
touching the same subject. A week later extensive 
extracts from the dispatches of our minister at 
London were given to Congress, and on the next day 
the Senate passed a resolution requesting Wash- 
ington to lay before it the correspondence of our 
minister at Paris with the French Government and 
with the Department of State. During February, 
March, and April other communications on foreign 
relations were received from the President. Yet not 
one of these messages was referred to a committee, 
and during the entire session only two committees 
were raised that had anything to do with foreign 
affairs.^ 

During the administration of John Adams little 
conscious progress was made in the development of 
a standing committee on foreign relations. Pos- 
sibly for the very reason that during these years 
the attitude of the United States toward France, 
England, and Spain was the paramount, or at least 
the most spectacular issue of national politics, the 
Senate preferred to act directly in foreign affairs. 
The nearest approach to a foreign relations com- 
mittee was made during the long and momentous 
session which began on November 13, 1797. At 
the opening of the special session of the preceding 
summer Adams had recommended the strengthen- 
ing of the navy as a measure of precaution against 
further trouble with France.- In his first annual 

» Annals of Congress, 179.3-1795, pp. 14-15, 19, 31, 32, 37, 38, 55, 
56, 62, 80; Am. State Papers, For. Rels., I. 141-243, 247-288, 309- 
311, 312-314, 31.5-323. 

2 Richardson, Messages, I. 233-239. 



SENATE COMMITTEE ON FOREIGN RELATIONS 177 

address he again urged that every exertion should 
be made for the protection of our commerce — and 
that the country should be placed in a suitable 
posture of defense.^ Two weeks later the Senate 
ordered that ''Messrs. Goodhue, Laurance, Tracy, 
Bingham, and Gunn, be a committee to take into 
consideration that part of the President's speech, 
which recommends some measures being adopted 
for the security and protection of the commerce 
of the United States; and to report thereon by bill 
or otherwise." ^ During the seven months of this 
session scarcely a day passed that these five men were 
not engaged in considering one or more measure? 
having to do with, or arising out of our relations 
with France. Almost all of the measures of de- 
fense and offense that arose out of the French 
quarrel either originated with them or passed through 
their hands. To this committee was referred the 
message in which the President set forth the flagrant 
violations of American neutrality by the French 
privateer Vertitude, after that vessel had sunk a 
British merchantman in Charleston harbor. They 
received for consideration Adams's pessimistic com- 
munication of March 19 — which declared that 
there was small chance of our envoys accomplish- 
ing the objects of their mission, and recommended 
energetic measures of defense. In this committee 
originated the bills by which the Senate proposed 
to cope with the situation, and to them were re- 
ferred also those measures which were sent up from 
the House. On June 21, 1798, they presented the 

^ Richardson, Messages, I. 250-254. 
2 Annals of Congress, 1797-1799,^1. 475. 



178 THE SENATE AND TREATIES 

bill declaring the French treaties to be void and of 
no effect. All told, they reported eight Senate bills 
and received for consideration seven House bills 
concerning measures affecting our relations with 
France, each of which they piloted through its 
course in the Senate. In addition, they reported 
one resolution and considered two Presidential mes- 
sages which were referred to them.^ 

Yet despite this activity, a careful study of the 
proceedings of the session reveals how far this group 
was from being a committee on foreign relations, or 
even on French affairs. It also demonstrates con- 
clusively that at this time no such committee existed, 
or was considered to exist. Of the eight messages 
with which Adams laid before Congress the cor- 
respondence of our unfortunate envoys to France, 
and other documents of like nature, only two were 
referred to this committee. The other six were 
considered by the Senate as a whole, and not one 
of them was given to any committee. In most cases 
the message and accompanying documents were 
ordered to be printed, and then were acted upon 
directly by the Senate as it saw fit.'- 

It was almost at the end of Jefferson's second ad- 
ministration, during the memorable special session 
of 1807-1808, that the natural tendency of the 
Senate to follow the lead of a relatively small group 
of men in the transaction of a particular sort of 

^'Annals of Congress, 1797-1799, I. 497-498, .505-506, 523-525, 
529, 540, 542-543, 548, 571-573, 585-586, 590-591, 597, 604, 609; 
Am. State Papers, For. Rels., II. 116-119, 152. 

2 Annals of Congress, 1797-1799, I. 516, 517, 555, 571, 581, 585- 
586; Am. State Paver., For. Rels., II. 150-151, 153-163, 169-182, 
185-188, 188-199, 199-201. 



SENATE COMMITTEE ON FOREIGN RELATIONS 179 

business gave rise to a real, although not a recognized 
standing committee on foreign relations. During 
the session the following matters, dealing directly 
with British relations or with measures made neces- 
sary by them, were either referred to or reported 
from select comrnittees: so much of the annual 
message as related to the recent outrages of British 
armed vessels within the jurisdiction of the United 
States, and to the legislative provisions which might 
be expedient as resulting from them; Jefferson's 
embargo message; the embargo bill; the enforce- 
ment act, sent up from the House; the House bill 
to continue the act to protect American commerce 
and seamen from the Barbary Powers; Jefferson's 
message submitting the British orders in council 
of November 11, 1807; the supplemental non- 
importation act from the House; a plan from the 
President for an increase in the army; the House 
bill supplementary to the embargo; the message 
submitting the papers concerning the Leopard- 
Chesapeake affair; the Monroe-Pinckney negotia- 
tion, and the correspondence upon the subject of 
the rejected treaty, and all of the correspondence 
with reference to the negotiations with France; 
the bill authorizing the President to suspend the 
embargo under certain conditions; a report re- 
viewing the condition of our foreign relations and 
recommending a continuance of the existing policy; 
a supplementary embargo bill; and, finally, House 
amendments to this bill.^ 

An examination of these measures at once dis- 

1 Annals of Congress, 1807-1808, I. 19, 34, 50-53, 63-64, 78, 79, 
104, 127, 151, 153, 173-174, 178, 186, 361-371, 378. 



180 THE SENATE AND TREATIES 

closes a certain unity in all of them; all are directed 
to a common purpose. It might be expected/ then, 
that they would have been referred to one standing 
committee — say upon British relations and national 
defense. Or, they might have been divided into 
two groups, one including those bearing directly 
on British relations, and the other those having 
to do with measures of defense. As has been said, 
however, each was referred to a select committee 
raised on that one subject. But, and here is the 
interesting development, all of the eleven com- 
mittees created were composed of a very small 
number of men — men who were leaders in the 
upper house. The extent to which this concentra- 
tion of control was carried is indicated by an ex- 
amination of the make-up of the committees. 
John Quincy Adams served upon every one of them, 
and was chairman of one; General Samuel Smith 
of Maryland upon ten of the eleven, and was chair- 
man of seven; Anderson of Tennessee upon five, 
and was chairman of two ; Bradley of Vermont upon 
five; Mitchell of New York, and Gregg of Pennsyl- 
vania upon three; Giles of Virginia upon two, and 
was chairman of one; and Gaillard, Sumter, Hill- 
house, and Milledge upon one each. The forty- 
three committee places were held by just eleven 
men, and of the eleven four sat upon only one 
committee. 

Thus, although formally the Senate appointed 
eleven select committees, each independent of the 
others, yet the sum total of these bodies in member- 
ship practically amounted to a standing committee 
of eleven members, or, if the four men serving on 



SENATE COMMITTEE ON FOKEIGN RELATIONS 181 

just one committee be eliminated, of seven. In 
this instance, as in many others to be found in the 
study of the procedure of legislative bodies, the 
fact preceded the form; the institution, a standing 
committee on foreign relations, was gradually com- 
ing into existence before it was formally recognized 
and named. 

From 1807 on, the development of the committee 
took on a more obvious form. As has been inti- 
mated, it finally grew out of the custom of referring 
to select committees given subjects mentioned in 
the annual messages. Such a committee was raised 
on so much of Jefferson's last annual message as 
concerned our relations with the Barbary powers.^ 
A year later Madison's message set forth the critical 
condition of the relations of this country with Great 
Britain and Spain, and with it the President sub- 
mitted to Congress diplomatic correspondence show- 
ing the situation with reference to these nations.- 
On the day following its delivery, Giles, of Virginia, 
submitted the following resolution for consideration.^ 

Resolved, That so much of the message of the President 
of the United States as respects the relations existing be- 
tween the United States and Great Britain and France, 
with the accompanying documents, be referred to a select 
committee, with instructions to examine the same and 

1 Annals of Congress, 10th Cong. 2d. Sess., 1808-1809 p. 19. 

2 Richardson, Messages, I. 473-477. 

^ William Branch Giles was one of the most prominent of the 
Republican Senators during this entire period. He played an 
influential role in the action of the Senate in foreign relations, and 
served upon many of the committees appointed on the subject. 
His career is traced carefully, but without inspiration in, Anderson, 
William Branch Giles: A Study in the Politics of Virginia and the 
Nation from 1790 to 1830 (Menasha, Wisconsin, 1914). 



182 THE SENATE AND TREATIES 

report thereon to the Senate; and that the committee 
have leave to report by bill, bills, or otherwise.^ 

The resolution was adopted by the Senate, and Giles, 
Pope, Bradley, Goodrich, Leib, Sumter, and Gil- 
man were chosen to be the committee.- This com- 
mittee, or its leaders, all through the session played 
a predominant part in the haphazard efforts of the 
politicians in the Senate at once to stave off a war 
with England and to safeguard American interests, 
so far as was consistent with economy, Republican 
principles, and their own personal political ambi- 
tions. It was this committee that reported Giles's 
famous resolution, verbally castigating His Britannic 
Majesty's minister, Francis James Jackson, for the 
imputations of bad faith which he had cast upon 
the government, and pledging to the executive the 
support of Congress in repelling his insolence. At 
the same time it brought in a bill to prevent the 
abuse of the privileges and immunities enjoyed by 
foreign ministers in the United States.'^ Early in 
January the message from the President recom- 
mending an increase in the army and the organiza- 
tion of the militia was referred to the same com- 
mittee. A week later Giles reported for the com- 
mittee a bill authorizing the President to man, fit 
out, and officer the frigates of the United States. 
In this connection the committee had carried on a 
correspondence with the Secretary of the Navy, 
which was now ordered to be printed. On the last 

' Annals of Congress, 1808-1809, I. 478. 

2 Ibid., pp. 478-479. 

3 Annals of Congress, 1808-1809, I. 481-482; see also Moore, 
International Law Digest, IV. .^l 1-513. 



SENATE COMMITTEE ON FOREIGN RELATIONS 183 

day of the month Mr. German presented resolu- 
tions providing for convoys for American merchant- 
men, and this proposition was referred to Giles's 
committee. The non-intercourse bill, which came 
up from the House and which was intended to re- 
place the expiring embargo, was intrusted to another 
group, while a House bill providing for the pro- 
tection of Mediterranean commerce was passed 
without any reference whatever.^ But Giles and 
his colleagues participated in the action of the 
Senate upon these measures, and, indeed, the com- 
mittee exercised a potent influence over the Senate 
during this session in all matters pertaining to 
England and France. 

Early in the session commencing in December, 
1810, again upon motion of Giles, the Senate adopted 
a resolution in terms identical with the one of 1809 
setting up a committee on so much of the annual 
message as referred to the relations between the 
United States, Great Britain, and France.- Giles, 
Crawford, Anderson, Goodrich, and Pope were 
chosen to serve, all except Goodrich being Re- 
publicans of national prominence. To these men 
were referred petitions of individuals asking to be 
relieved from some of the provisions of the Non- 
intercourse Act.^ As a matter of fact, however, 
the committee was of slight consequence during 
this session, because the absorbing subject of in- 
terest during the winter of 1810 was that of the 
Floridas; and the measures by which the Senate 
proposed to bring this territory under the control 

1 Annals of Congress, 1808-1809, I. 520, 526, 530-531, 550, 587. 

2 Ibid., 1810-1811, p. 16. 3 Ibid., pp. 21, 250. 



184 THE SENATE AND TREATIES 

of the United States were referred to other com- 
mittees. Upon so much of the President's message 
as concerned the occupation of West Florida was 
raised a committee composed of Giles, Pope, Ander- 
son, Crawford, and Bradley.^ This was done upon 
motion of Giles, and it is to be noticed that, except 
for the substitution of Bradley for Goodrich, the 
only Federalist in the other group, the two com- 
mittees were identical. In response to a confiden- 
tial message from Madison, the subject of East 
Florida was taken up in secret session. Three 
measures were passed in this connection: an act 
authorizing the President to take possession of the 
country, a resolution declaring to the world the 
position of the United States with reference to this 
territory, and a resolution ordering that these acts 
be not published without the direction of the Presi- 
dent.^ Three committees acted in the transaction 
of this business. The first was composed of Clay, 
Crawford, Bradley, Smith of Maryland, and Ander- 
son; the second of Bayard, Crawford, and Clay; 
the third of Anderson, Crawford, Clay, Bradley, 
and Smith of Maryland,^ It will be observed, of 
course, that the personnel of these committees and 
of the two earlier chosen was strictly limited. All 
five, in fact, were composed of a small group of the 
leading Republicans of the upper house. Yet 

1 Annals of Congress, 1810-1811, pp. 16-17. 

2 See Hildreth, History of the United States, III. (2d series), 
xxiii; Adams, History of the United States, V. xv; Chadwick, Rela- 
tions of the United Stales and Spain, Diplomacy, Ch. VI. It was 
in connection with this matter that Piclcering was censured by the 
Senate for reading? confidential papers in open session. 

3 Sen. Exec. Jour., II. 17G, 182. 



SENATE COMMITTEE ON FOREIGN RELATIONS 185 

formally each group was a separate, independent, 
select committee, bearring no organic relation to any 
of the others. 

Again, at the beginning of the session of 1811- 
1812, so much of the annual message as concerned 
the relations between the United States, France, and 
Great Britain was referred to a select committee. 
Giles, Crawford, Gregg, Frankhn, Lloyd, and Pope 
were named, Giles being once more the chairman.^ 

The committee which was appointed a year later 
marked in its title an advance towards the form 
which later became the accepted one. In his an- 
nual message of 1812, Madison had adverted to our 
relations with Great Britain, with whom we were 
at war, and with France, Denmark, Russia, Sweden 
and the Barbary States.^ On the day following, 
four motions were submitted providing for the 
reference of four of the most important subjects 
treated in the message to as many select committees. 
The first resolution includes so much of the message 
as concerned ''our relations with foreign powers, 
the Military Establishment of the United States 
and volunteers." ^ All four resolutions were 
adopted, and Franklin, Campbell of Tennessee, 
Taylor, Varnum, Howell, Robinson, and Worthing- 
ton were chosen to serve on the first-named com- 
^mittee. This committee was active throughout the 
session, and exhibited more of the characteristics 

1 Annals of Congress, 1811-1812, pp. 15-17. 

2 Ibid., 1812-1813, pp. 13-14. 

3 Ibid., p. 17. The other subjects were: The naval estabhsh- 
ment of the United States; American vessels which had arrived in 
the United States laden with British manufactures; the revision 
of the militia laws. 



186 THE SENATE AND TREATIES 

of a real committee on foreign relations than had 
any of its predecessors. Early in the session a 
communication from Madison concerning the at- 
tempt which had been made through Jonathan 
Russell to bring about a suspension of hostilities 
with Great Britain was referred to it as ''the Com- 
mittee on Foreign Relations." ^ A few days later 
another letter on the same subject was referred to 
the "committee who have under consideration so 
much of the message of the President of the United 
States, of the 4th instant, 'as concerns our relations 
with foreign Powers.'" This matter of nomencla- 
ture may be of little importance in itself, but it is 
not without interest to observe how the name of 
this great committee gradually came into use. 
During this and several sessions following, the title 
"Committee on Foreign Relations" frequently, in 
fact usually, wag applied to the body appointed 
under the sort of resolution which has been de- 
scribed. On the other hand, the committee often 
was referred to in other ways — described, rather 
than named. 

A review of the measures which came before the 
committee during this session reveals a slight in- 
crease in the specialization of its functions. It 
was occupied with fewer matters not bearing directly 
on foreign relations, and at the same time the Senate 
passed or considered a smaller number of measures 
in this particular field without consulting it.^ 

A conscious step towards the specialization of the 

1 Annals of Congress, 1811-1812, 19. 

- Ibid., pp. 18-19, 21, 27, 39, 94, 101, 104, 105, 112, 113, 115, 
117, 121. 



SENATE COMMITTEE ON FOREIGN RELATIONS 187 

function of the committee was made when Congress 
met in May, 1813. On the day following the read- 
ing of Madison's message, a resolution was intro- 
duced providing that so much of it as concerned our 
relations with foreign Powers and the military 
establishment be referred to a select committee. 
At the same time it was moved that the part of 
the message relating to the naval estabhshment be 
referred to another committee. The next day, how- 
ever, military affairs were separated from foreign 
relations, select committees being set up on each of 
the three subjects.^ During this session, also, a 
still greater homogeneity is to be observed in the 
measures considered by the committee, practically 
all of the business arising from our troubles with 
Great Britain passing through its hands. ^ At the 
same time, however, a very important part of the 
business of the Senate in the field of foreign relations 
was being carried on with the assistance of other 
groups. Early in the session Madison submitted 
to the Senate the nominations of Gallatin, Adams, 
and Bayard as peace envoys, along with that of 
Jonathan Russell as minister to Sweden.^ The 
nominations of Gallatin and Russell were opposed, 
largely from political motives, but in the former 
case for the ostensible reason that the position was 
incompatible with that of Secretary of the Treasury, 
and in the latter upon the ground that it was in- 
expedient at that time to send a minister to Sweden. 
A bitter struggle followed, which resulted in the 

1 Annals of Congress, 1813-1814, 1, 18-19. 

2 Ibid., pp. 25, 31, 36-39, 45, 47, 55, 59. 
^ Sen. Exec. Jour., II. 347. 



188 THE SENATE AND TKEATIES 

rejection of both names. The fact of interest is 
that in considering the nominations, and in carry- 
ing on its struggle with the President over them, 
the Senate acted through select committees, rather 
than through the group which had been appointed 
at the beginning of the session to consider foreign 
relations. Not only that, but a comparison of the 
personnel of these committees with that of the 
Foreign Relations Committee shows that the mem- 
bership of the former contained by far the weightier 
Senators.^ A few years later neither of these con- 
ditions would have existed. 

During the second session of the thirteenth Con- 
gress, which met in December, 1813, the functions 
of the Committee on Foreign Relations possessed 
even greater unity, and were of larger importance 
than during previous years. An enumeration of the 
matters of business coming before it is, perhaps, 
the most effective means of setting forth its func- 
tions at this time. During the session it had under 
consideration the following measures: the message 
of the President recommending an embargo, a bill 
which it reported in response thereto, and the House 
embargo bill which ultimately became law; the bill, 
which it reported, prohibiting the importation of 
certain articles derived principally from Great 
Britain; Madison's message submitting to Congress 
the British rejection of Russian meditation, and 
Lord Castlereagh's offer to treat for peace directly; 
the message recommending the repeal of the embargo 

1 Sen. Exec. Jour., II. 347, 352, 354, 395. Adams, History of the 
United States, VII. 59-64, presents a most interesting discussion of 
this struggle, its outcome, and its political significance. 



SENATE COMMITTEE ON FOREIGN RELATIONS 189 

and the extension of additional duties for a period 
of two years after the war; two petitions on this 
subject; the bill for the repeal of the Embargo Act; 
a proposal to pass an act prohibiting the exporta- 
tion of sheep from the United States; a bill, which 
it reported but which failed to pass, prohibiting the 
exportation of specie, gold or silver coins, or bullion; 
bills providing for the more effectual enforcement of 
the Non-Importation Act, and for the return to 
their own districts of vessels detained in other dis- 
tricts under the terms of the Embargo Act, and, 
finally, numerous bills for the relief of individuals 
seeking exemption from pains and penalties incurred 
by alleged violations of the Non-Importation and 
other war acts.^ 

These measures comprise all of the more important 
matters of general business arising out of the foreign 
relations of the United States at this time. All 
had some bearing on the war with Great Britain, 
and all were legislative in their character. But 
during this session no business concerning our re- 
lations with any other power came before the Senate, 
except the appointment of foreign ministers. This 
subject, of course, was considered in executive ses- 
sion, and no committees were employed in connec- 
tion with any diplomatic appointment passed upon 
at this time. Thus the Committee on Foreign 
Relations had practically a monopoly of the busi- 
ness transacted by the Senate within its field. 

The special session commencing in September, 
1814, offers three points of particular interest in 

- 1 Annals of Congress, 1813-1814, I. 549, 550, 551, 562, 565, 570, 
601, 613. 



190 THE SENATE AND TREATIES 

the history of the committee. The first has to do 
with the manner of its choice. Madison's message, 
laying before Congress the facts of the mihtary 
situation and the needs of the army, the navy, and 
the treasury, contained no suggestions on foreign 
relations which demanded the immediate attention 
of the Senate. Consequently the usual reference to 
a select committee of that part of the message which 
touched upon such relations was hardly in order, 
and at the beginning of the session no such com- 
mittee was created.^ On October 10, however, 
the President communicated to Congress letters 
from the American peace envoys, and four days 
later submitted the instructions under which thej^ 
were acting. Whereupon the Senate passed a reso- 
lution that these documents, together with the 
several communications from the President since 
the beginning of the session, should be referred to a 
select committee. Bibb, Taylor, King, Brown, and 
Chase were chosen as the committee, and during 
the remainder of the session were usually referred 
to as the "Committee on Foreign Relations." As 
such they were the organ of the Senate for the 
transaction of the same sort of business that had 
been assigned to similar committees in years past.- 
Such a body might, perhaps, be described as a 
quasi-standing committee. It was not created as a 

1 Richardson, Messages, I. 547-551. The only parts of the 
message which were referred to select committees at this time were 
those concerning the militia and military affairs. Annals of Caii- 
gress, 1814^1815, III. 16, 24, 27. 

2 Ibid., pp. 24, 27, 164, 245-250, 260, 269, 270, 275, 278, 280, 
294-297. 



SENATE COMMITTEE ON FOREIGN RELATIONS 191 

standing committee, and, so far as the formal action 
of the house went, it was on the same basis as any 
select committee. But in everything but name it 
certainly possessed the characteristics of the stand- 
ing committee, even to that of continuity of member- 
ship from session to session.^ 

On the last day of the session Bibb's committee 
brought in a report which is of interest because it 
was the first of a type which frequently appears in 
the later history of the Committee on Foreign Re- 
lations. Soon after Congress had assembled, Madi- 
son had communicated to both houses correspond- 
ence which had passed between himself and Admiral 
Cochrane, in command of the British fleet on the 
American station, relative to the devastation which 
the British threatened to mete out to American 
coast towns in retaliation for wanton destruction 
alleged to have been committed by the American 
army in upper Canada.^ The incident mentioned 
was the burning of York, which later was pointed 
to by the British as a justification for the destruc- 
tion of the public buildings in Washington and other 
outrages of the same nature. The Senate referred 
the correspondence to the Committee on Foreign 
Relations, and just before adjournment the chair- 

^ Bibb, the chairman of this committee, and Taylor, Chase, 
and Brown had served on the Foreign Relations Committee of the 
preceding session. Also the committee had dropped back to five 
members, the size which it had had until the year before, when it 
had gone to seven. Rufus King was the only member of the new 
committee who had not served on its immediate predecessor — 
and no man then in the Senate was possessed of more experience in 
the field of foreign relations than King. 

2 Am. State Papers, For. Rels., III. 693-695. 



192 THE SENATE AND TREATIES 

man of this body submitted a report giving the re- 
sult of their inquiries, which, it was declared, mani- 
fested ''to the world that the plea which had been 
advanced for the destruction of the American 
Capitol and the plunder of private property" was 
without foundation.^ As an organ for the formu- 
lation of the opinion of the Senate upon matters 
concerning the foreign relations of the United States, 
the committee has produced some manifestoes which 
have been of far-reaching importance in the history 
of the nation. Although its report on the "re- 
taliating system" as practiced by Great Britain 
during the War of 1812 does not rank as an important 
state paper, yet it is worth noting because it is the 
first product of this sort of activity on the part of 
the committee. 

The third significant event of the special session 
of 1814 was the use of the Committee on Foreign 
Relations in executive session in connection with the 
proceedings on the Treaty of Ghent. The incident 
occurred two days after the Senate had consented 
to the ratification of the treaty, when a motion to 
remove the injunction of secrecy from the proceed- 
ings and to print the documents connected there- 
with was referred to the ''Committee on Foreign 
Relations."- The reference marks the point at 
which this committee, after having come into being 
during a decade when no treaties were before the 
Senate, began to perform the functions which in- 
evitably were to be assigned to it, and in the exercise 
of which it was to reach its greatest usefulness and 

1 Am. State Papers, For. Rels., III. 294-296. 

2 ,SVn. E.vec. Jour., II. G21. 



SENATE COMMITTEE ON FOREIGN RELATIONS 193 

power. Hitherto it had been a legislative com- 
mittee; it had been used almost exclusively for the 
transaction of legislative business; no allusion to 
it is to be found in the executive journal. From 
this time on, its most important business was to 
be transacted in executive session, and every treaty 
laid before the Senate was to be considered by it. 
At the beginning of the session of 1815 the usual 
reference of the several parts of the annual mes- 
sage was made, and it was not until a year later, 
December, 1816, that the Committee on Foreign 
Relations became the first standing committee of 
the United States Senate.^ On the day following 
the reading of Madison's last annual address, 
Nathan Sanford of New York submitted thirteen 
resolutions, each referring a certain part of the mes- 
sage to a select committee, with leave to report by 
bill or otherwise. On the next day, however. Sena- 
tor Barbour of Virginia introduced a resolution pro- 
viding that it should be one of the rules of the Senate 
that eleven standing committees, which were named, 
should be appointed at each session. After dis- 
cussion during several days, the resolution was 
passed on December 10, the Committee on Foreign 
Relations heading the list. Three days later Bar- 
bour, Mason, King, Dana, and Lacock were chosen 
to be members of the committee.- 

^ Annals of Congress, 1815-1816, pp. 19, 20. Committees were 
chosen to consider those parts of the message concerning foreign 
affairs, the mihtia, mihtary affairs, naval affairs, finance and a 
uniform national currency, manufactures, roads and canals, and a 
national seminary of learning within the District of Columbia. 

2 Annals of Congress, 1816-1817, pp. 18-22, 30, 32. The other 
committees named were those on finance, commerce and manu- 



194 THE SENATE AND TREATIES 

Thus was established the Committee on Foreign 
Relations of the United States Senate. Along 
with the ten other committees made permanent at 
the same time, it had gradually come into exist- 
ence during the decade and more of stress and 
strain which preceded the conclusion of the War 
of 1812. During the earlier years of the govern- 
ment, treaties and foreign affairs generally had 
been referred to select committees occasionally 
but in accordance with no particular rules of 
procedure. An increasing pressure of business, a 
pressure which became heavy during the war, 
demanded a greater efficiency of the Senate. The 
demand was met by a specialization of function 
— by the development of a system of standing 
committees which practically came into existence 
some time before it was formally made a part 
of the organization of the Senate. This speciaUza- 
tion developed first in the field of foreign relations, 
and as at this time the business in this field was 
almost wholly legislative in its nature, the Com- 
mittee on Foreign Relations developed as a legis- 
lative committee. With the consideration of the 

factures, military affairs, the militia, naval affairs, public lands, 
claims, the judiciary, the post office and post roads, and pensions. 
All of the members of this first Standing Committee on Foreign 
Relations were leaders in the Senate and in the nation. Barbour 
was a member continuously from 1816 until 1824, the last session 
before he left the Senate to become Secretary of War. He was 
chairman in 1816, 1817, 1820, 1822, 1823, and 1824. Nathaniel 
Mason was a member of the committee for twelve years, and was 
thrice chairman. Excei^t for one session, Rufus King served from 
1815 to 1823. S. W. Dana served only during the session of 1816, 
while Abner Lacock was a member for three years. King and Dana 
were the Federalist members. 



SENATE COMMITTEE ON FOREIGN RELATIONS 195 

message and documents on the Treaty of Ghent 
its executive functions began, and it became the 
organ of the Senate for the transaction of executive 
as well as legislative business within the realm of 
foreign affairs. 



CHAPTER IX 

The Senate and Treaties at the End of 
THE Formative Period 

The procedure followed b}^ the Senate in its 
action upon the Treaty of Ghent departs in no im- 
portant particular from the norm which had be- 
come established by 1805. The struggle between 
Madison and the upper house over the appointment 
of Gallatin, and their differences upon the propriety 
of recess appointments which were not to fill con- 
stitutional ''vacancies/' concern the appointing 
more directly than the treaty-making powers of 
the Senate. In finally confirming the appointment 
of commissioners to negotiate treaties of peace and 
of commerce with England, a treaty of commerce 
with Russia, and one of commerce with Sweden, 
no formal effort was made by the Senate to as- 
certain in detail what it was proposed to embody in 
the agreements.^ 

When the Treaty of Ghent was laid before the 
Senate in February, 1814, that bodj'' accepted it 
with what may, perhaps, be described as eagerness. 
The instrument was submitted on the fifteenth, 
and the President's statement that, ''the termina- 
tion of hostilities depends upon the time of the 

' Sen. Exec. Jour., II. 346, 348, 349, 351, 353-355, 384, 388-390, 
451-454. 

190 



END OF THE FORMATIVE PERIOD 197 

ratification of the treaty by both parties," ^ led the 
Senate to expedite its consideration. The message, 
the treaty, and the accompanying documents were 
read, and by unanimous consent the treaty was 
read a second time, after which General Smith in- 
troduced a resolution giving the advice and consent 
of the Senate to its ratification. Rufus King, how- 
ever, interposed with a motion that the President 
be requested to lay before the Senate all the in- 
structions given to the envoys, together with all 
correspondence and protocols connected with the 
negotiation which they had not previously received. 
The adoption of King's resolution held up' further 
consideration of the treaty until the next day, when, 
upon the receipt of the documents asked for, the 
resolution of advice and consent was passed without 
further delay.- 

During the first session of the fourteenth Congress 
the two treaties which were acted upon by the Senate 
were considered under procedure which seems to 
have changed from that provided for by the rules 
which had been adopted in 1801 only in the employ- 
ment of the committee on foreign relations. In 
the first executive message of the session Madison 
submitted the commercial convention with Great 
Britain, which had been concluded the preceding 
July,^ and the treaty of peace with Algiers, which 
had been signed at the end of June. Both of the 
treaties and the documents which had accompanied 

1 Sen. Exec. Jour., II. 618-619. It seems not unlikely that the 
necessity of speedy action led the Senate to deal with the question 
directly, and without the assistance of a committee. 

2 lUd., pp. 619, 620. 3 July 3^ igi5_ 



198 THE SENATE AND TREATIES 

them were ordered to be printed for the use of the 
Senate, under an injunction of secrecy — action 
which was almost invariably taken from this time 
on immediately after the receipt of a treaty by the 
Senate. On the following day the British treaty 
was referred to the committee on foreign relations, 
which shortly afterwards reported a resolution of 
advice and consent. With slight modification this 
resolution was adopted, only one Senator opposing 
ratification. The treaty of peace with Algiers was 
not formally referred to the committee on foreign 
relations, but the resolution providing for its rati- 
fication was introduced by Mr. Bibb, the chairman 
of that body, and was passed without opposition.^ 
The commercial convention with Sweden signed 
by Jonathan Russell on September 4, 1816, was 
submitted to the Senate early in December.^ Pro- 
cedure upon it followed the customary lines, al- 
though the Senate gave its consent to ratification, 
only upon the condition that three of the articles 
be expunged. After first reading, the convention 
was referred to the committee on foreign relations, 
of which James Barbour of Virginia was then chair- 
man.^ Two weeks later Barbour brought in a 
report recommending that the treaty be printed in 
both French and English, and that a letter from 
Russell to the Secretary of State respecting its 
negotiation also be printed."^ After the Senate had 

1 Sen. Exec. Jour., III. .3, 4, 6-8. On Januan- 2, 1816, on 
motion of Bibb, the injunction of secrecy was removed from the 
proceedings of the Senate upon the treaties Avith Great Britain and 
Algiers. Ibid., p. 14. 

2 Sen. Exec. Jour., III. 60-61. 3 /^yj.^ p. ei. 

* This report appears in CcmjAlation of Report,^, Sen. Co?)}. For. 



END OF THE FORMATIVE PERIOD 199 

considered the treaty in committee of the whole 
upon several different days, Barbour introduced a 
resolution providing for its ratification with the ex- 
ception of the third, fourth, and sixth articles. 
This resolution was adopted on the following day 
with only two votes registered in the negative. ^ 

The procedure of the Senate in considering the 
four treaties which were before them in 1815 
and 1816, thus followed very closely the lines which 
had been laid down during the first fifteen years 
of government under the Constitution, except in 
the use which was made of a standing committee on 
foreign relations. Nor has there been any radical 
change in Senate procedure since 1816. 

THE SENATE AND THE NEGOTIATION OF TREATIES 

During this same period an important principle 
which had been gradually developing with reference 
to another aspect of the treaty-making power 
became more firmly established. This was the 
principle that the Senate should not attempt to 
participate formally in treaty-making until after the 
process of negotiation had been completed. Wash- 
ington and the earliest Senates had endeavored to 
apply a different theory, which the early treaties 
with Indian tribes had proved to be unworkable, 
and which had gradually been abandoned in prac- 
tice, although never formally renounced. 

The matter had been threshed out very thor- 
oughly in 1806, when the President was asked to 

Rels., VIII. 26, under the incorrect date of January 3, 1817. It was 
submitted January 3, 1816. Sen. Exec. Jour., III. 68. 
1 lUd., pp. 72, 74-75, 77, 78. 



200 THE SENATE AND TREATIES 

take certain specific action with reference to British 
aggressions on American commerce. The debate 
was upon the question of the adoption of the fol- 
lowing resolution, the second of three which had 
been introduced by a committee of which General 
Smith, John Quincy Adams, and Joseph Anderson 
were the leading members: 

Resolved, That the President of the United States be 
requested to demand and insist upon the restoration of 
the property of their citizens, captured and condemned 
on the pretext of its being employed in a trade with the 
enemies of Great Britain, prohibited in time of peace; 
and upon the indemnification of such American citizens, 
for their losses and damages sustained by these captures 
and condemnations; and to enter upon such arrange- 
ments with the British Government, on this and all 
other differences subsisting between the two nations, and 
particularly respecting the impressment of American 
seamen, as may be consistent with the honor and interests 
of the United States, and manifest their earnest desire 
to obtain for themselves, and their citizens, by amicable 
negotiations, that justice to which they are entitled.^ 

In the debate which followed the introduction 
of this resolution, some of the ablest students of the 
Constitution and most influential Senators of the 
day expressed their opinions upon the advisability 
of attempting to outline in detail the terms to be 
insisted upon by the President in a negotiation with 
a foreign nation. All agreed that the Senate would 
be within its constitutional rights in passing the 
resolution, but great differences of opinion ap- 
peared as to the expediency of such action. The 
adoption of the resolution was opposed upon the 

1 Antmls of Congress, 1805-1806, p. 91. 



END OF THE FORMATIVE PERIOD 201 

ground that it would be disrespectful and officious; ^ 
because by grouping together a number of separate 
propositions, each one of which might be difficult 
to attain, and requesting the President to ''demand 
and insist" upon all of them, it gave him only the 
alternatives of disregarding the advice of the Senate 
or of failing to conclude any treaty at all; ^ and 
because the adoption of such a resolution would de- 
crease the responsibility which the executive ought 
to feel for treaty-making.^ Other members urged 

1 Smith of Vermont. Annals of Congress, 1805-1806, p. 95. 

2 Upon this point Worthington said, "It is not, sir, that I am 
opposed to demanding or insisting on our rights; but it is because 
I fear the resolution taken together will embarrass the executive 
in negotiating a treaty to settle our differences. . . . With so wide 
a field of negotiation, with so many important objects to accomplish, 
I submit it to the good sense of the Senate, whether it will be proper 
to tie up the hands of the Executive in the manner contemplated 
in the resolution." Ibid., p. 105. Adair emphasized the same 
point, contrasting the general nature of the first resolution with the 
specific instructions given in the second, and declaring that the 
latter went too far. "It is circumscribing the powers of the Presi- 
dent, and t5ang him down to a particular point. It is making that 
the sine qua no7i, the basis on which alone he is to treat; at least 
it is doing this so far as an opinion of the Senate, expressed in this 
way, can do it. . . . It has been well observed by the honorable 
member from Tennessee, that in forming commercial treaties of 
this kind, there will be various points to consider, and that it may 
not be necessary to contend for strict justice in every punctilio; 
arrangements or treaties, when there are existing differences to settle > 
must always be a bargain of compromise and forbearance; in one 
point we may give a Little, that we may gain in another. So it 
may turn out in settling our disputes with Great Britain. Why, 
then, are we not satisfied with expressing our opinion on the great 
principle of right and leave it altogether with our Chief Magistrate 
to enter into and point out the details?" Annals of Congress, 1805- 
1806, pp. 106-107. 

^ Bayard stated this objection as follows: "Mr. President, if 
there be any objection to the resolution now before us, it is that it 



202 THE SENATE AND TEEATIES 

the adoption of the resolution on the ground that, 
far from being an assumption of power by the 
Senate, it was both the right and the duty of that 
body to advise the President in this way; ^ on the 
ground that it would impress the government of 
Great Britain that the United States was a unit in 
demanding the redress asked for; - and because by 

shelters the Executive Government from that responsibihty as to 
its measures which properly ought to attach to it. The duty pre- 
scribed by the "tesolution is of an Executive nature, and the 
President is charged with the care of those interests for which the 
resolution provides. By prescribing a course of conduct to the 
Executive, we release that branch of government from responsibility 
as to the event, and take it upon ourselves." Ihid., pp. 101-102. 

1 Anderson set forth this position in the following words: "Let 
us examine the language of the Constitution upon this point. The 
Constitution says that the President shall have power, by and 
with the advice and consent of the Senate, to make treaties. Now, 
I contend that the true meaning of this clause is, that the advice 
should precede the making of the treaty, and that it was couched 
in the language in which we find it, for the purpose of obtaining 
the opinion of the Senate as to the principles upon which the treaty 
should be made." He then went on to cite the practice during 
Washington's time, and to point out that on account of its in- 
convenience this mode of taking the advice of the Senate had since 
fallen into disuse. "But," he continued, "the latter practise 
cannot, or ought not, be considered as condemning the construction 
of which I conceive the Constitution is fairly susceptible. Because 
the construction given by the first President so immediately after 
the adoption of the Federal Constitution must be considered as 
proceeding from the true sense and correct opinion which he then 
entertained of the respective rights of the treaty-making power." 
Ihid., pp. 96-97. Mitchell declared that "In questions touching 
our foreign relations, the Senators are declared by the Supreme 
law of the land to be the President's counsellors. In urgent and 
arduous cases it was not only allowable for them to exercise this 
right, but it was their duty to do so." Ihid., pp. 100-101. 

2 Bayard favored the passage of the resolution for this reason. 
He said, "For my part, sir, I do not consider the resolution as 
intended in any degree for the President, but as designed for the 



END OF THE FORMATIVE PERIOD 203 

it the Senate was sharing the responsibihty for the 
course of the executive, and giving greater weight 
to the President's action.^ 

These arguments include several of the chief 
reasons which have always been advanced for and 
against the general principle involved. It cannot 
be said, however, that at this time the Senate ex- 
pressed any definite opinion upon the abstract 
merits of the question. The resolution, to be sure, 
was adopted by a large majority, but this ap- 
parently was because the Repubhcans beheved that 
it would strengthen the President in meeting the 
crisis of our relations with Great Britain. The in- 
cident, therefore, probably proves no more than 
that the Senate beheved that, constitutionally, it 
possessed authority to participate in treaty-making 
at any stage in the process. 

Exactly the same point was brought to an issue 
soon after the ratification of the Treaty of Ghent. 
Immediately after the Senate had accepted the 
treaty, Rufus King introduced a resolution which 
provided that the Senate should ''recommend to, 

British Go\^ernment. ... I do not mean that we should be con- 
sidered as offering an empty menace to the British cabinet, but a 
demonstration of the imion of different branches of our Government 
in demanding satisfaction for the wrongs done us. Foreign Govern- 
ments calculate much on our divisions, our union will disappoint 
these calculations." Ibid., p. 102. 

1 Smith of Ohio exclaimed, " What is the object of the resolution? 
It is, that this branch of the legislature shall share the responsibility 
of employing means to execute the measure proposed. This is 
magnanimous, as it is voluntary on the part of the Senate, for 
in adopting the resolution we attach a degree of responsibility to 
ourselves in the effects to be produced." Annals of Congress, 1805- 
1806, p. 110. 



204 THE SENATE AND TREATIES 

and advise, the President" to pursue negotiations 
with Great Britain for the purpose of securing six 
different objects, which included the settlement of 
all British- American differences, and the recogni- 
tion of principles of international law for which the 
United States had contended for the past twenty- 
five years or more.^ A day or so later, after King 
had revised and extended this list, it was referred 
by the Senate to the committee on foreign relations.- 

1 Sen. Exec. Jour., III. 7. 

- Ibid., pp. 8-9. Negotiations were to be entered into for the 
purpose : 

"1. Of opening and establishing, on a satisfactory footing, the 
navigation, trade, and intercourse between the United States, and 
His Majesty's colonies in the West Indies, and on the continent of 
America. 

"2. Of re-opening to the United States the navigation of the 
river St. Lawrence, between their northern boundary and the city 
of Quebec; of obtaining to them the navigation of that river be- 
tween Quebec and the ocean; and obtaining for the trade of the 
United States in that quarter, by the grant of a suitable equivalent, 
a place of deposit on either bank of the St. Lawrence, within the 
province of Lower Canada. 

"3. Of abolishing the duties imposed on goods and merchandise, 
exported from His Majesty's European dominions to the United 
States, or of reserving to them a right to countervail the same, 
by other and adequate duties; and of placing the vessels of both 
parties on the same footing, in respect to the amount of drawbacks. 

"4. Of agreeing on and establishing adequate stipulations for 
the protection of American seamen from British impressment. 

"5. Of defining the cases Avhich alone shall be deemed lawful 
blockades. 

"6. Of enumerating the articles which alone shall be deemed 
contraband of war. 

"7. Of providing suitable regulations for the prosecution of 
neutral trade, with the colonies of the enemy of either party. 

"8. Of protecting the vessels and merchandise of each, from 
loss or damage by reason of the retaliatory decrees and orders of 
either against a third power." 



END OF THE FORMATIVE PERIOD ,205 

Had Monroe been successful in securing the agree- 
ment of Great Britain to the eight. objects in this 
revised Hst, international law probably would have 
been advanced at least a century, and Anglo- 
American diplomacy at once reduced to an exchange 
of complimentary communications and ornamental 
ambassadors. In reporting upon the resolution, 
the committee on foreign relations confined their 
inquiries to the considerations: 

1. Whether there be any circumstances which call 
for the proposed advice; and 

2. Whether there be not serious objections to the in- 
terference of the Senate in the direction of foreign re- 
lations.^ 

In relation to the first branch of the inquiry, it 
was the opinion of the committee that the executive 
had already exerted every possible effort to ac- 
complish the purposes set forth in the resolution, 
and that the advice of the Senate would in no way 
aid his future exertions.^ Upon this point the 
report states: 

Is it probable that the proposed advice will aid his 
exertions? It can not be presumed that he entertains 
any doubt concerning the opinion of the Senate with re- 
spect to the interests comprised in the motion, and the 
committee do not perceive how the expression of solicitude 
on the part of the Senate in relation to the objects about 
which no difference of opinion exists can afford any aid 
whatever. Every nation in making contracts is supposed 
to consult its own interests; and it is believed the history 
of the world does not furnish an example of one party 
yielding its pretensions in consequence of the disclosure 

1 Compilations of Reports, Sen. Com. For. Rets., VIII. 23-25. 

2 Ibid. 



206 THE SENATE AND TREATIES 

of unusual solicitude by the other party. Should, there- 
fore, the proposed advice be adopted and made public, 
it does not appear that any beneficial effect would be 
produced; and if it be kept secret, as is usual in ex- 
ecutive business (supposing it to be given by the Senate 
as a branch of the executive), it would be wholly nugatory. "; 

The report then takes up the second proposition, 
as foll6ws: 

2. The committee having endeavored to show that 
the resolution is unnecessary, they proceed to submit 
some positive objections to its adoption. 

If it be true that the success of negotiations is greatly 
influenced by time and accidental circumstances, the 
importance to the negotiative authority of acquiring 
regular and secret intelligence can not be doubted. The 
Senate does not possess the means of acquiring such in- 
telUgence. It does not manage the correspondence with 
our ministers abroad nor with foreign ministers here. 
It must therefore, in general, be deficient in the informa- 
tion most essential to a correct decision. 

The President is the constitutional representative of 
the United States with regard to foreign nations. He 
manages our concerns with foreign nations and must 
necessarily be most competent to determine when, how, 
and upon what subjects negotiation may be urged with 
the greatest prospect of success. For his conduct he is 
responsible to the Constitution. The committee con- 
sider this responsibility the surest pledge for the faithful 
discharge of his duty. They think the interference of 
the Senate in the direction of foreign negotiations cal- 
culated to diminish that responsibility and thereby to 
impair the best security for the national safety. The 
nature of transactions with foreign nations, moreover, 
requires caution and unity of design, and their success 
frequently depends on secrecy and dispatch. A division 
of opinion between the members of the Senate in debate 

1 Compilaiion of Reports, Se7i. Com. For. Rels., VIII. 24. 



END OF THE FORMATIVE PERIOD 207 

on propositions to advise the Executive, or between the 
Senate and Executive, could not fail to give the nation 
with whom we might be disposed to treat the most decided 
advantages. It may also be added that if any benefits 
be derived from the division of the legislature into two 
bodies, the more separate and distinct in practice the 
negotiating and treaty ratifying power are kept, the 
more safe the national interests. 

The committee are therefore of the opinion that the 
resolution ought not to be adopted. ^ 

During the nine weeks that it was before the 
Senate this report, the resolution, and the principle 
involved were thoroughly discussed,^ Unfortu- 
nately the meager entries in the executive journal 
give slight indication of the nature of the debates. 
In the end, however, the Federalists refrained 
from pressing the matter to a vote, and upon mo- 
tion of King it was ordered that consideration of 
the original motion and the report of the committee 
on foreign relations be postponed "till the first 
day of June next " — ^ a non-existent legislative 
day.'^ 

The able statement, made in this report, of the 
disadvantages inevitably attendant upon a regular 
and formal participation by the Senate in the 
negotiation of treaties cannot have failed to ex- 
ercise a powerful influence in permanently establish- 
ing the principle which, in practice, had been acted 
upon for more than twenty years. Certainly since 
that time the Senate has only occasionally sug- 
gested to the President that certain negotiations 
be undertaken, or that certain definite provisions 

1 Compilation of Reports, Sen. Com. For. Rels., VIII. 24-25. 

2 Sen. Exec. Jour., III. 33, 37, 38, 40. ^ /f,^^,^ p 49, 



208 THE SENATE AND TREATIES 

be sought in negotiations originated by the 
executive.^ 

RATIFICATION OF THE TREATY OF 1816 WITH 
SWEDEN AND NORWAY 

In connection with the discussion of Lord Har- 
rowby's treatment of the proposal of the United 
States to ratify the King-Hawkesbury convention 
with the exception of the fifth article, it was stated 
that, for a long time, the American government 
frequently accompanied suggestions for such con- 
ditional ratification with explanations of those 
characteristics of our constitution which made them 
necessary.- No better example of this practice 
can be cited than that furnished by the negotiations 
between Sweden with reference to the Senate amend- 
ments to the treaty of 1816 with Sweden and Nor- 
way.^ Inasmuch as the steps taken by the executive 
in the ratification of this treaty also illustrate the 
problems which may be imposed by the action of 
the Senate upon the President, the Secretary of 

1 Crandall, Treaties, Their Making and Enforcement (2d edition), 
pp. 73-74. Here are cited a number of instances in which such 
action has been taken. See also Lodge, "The Treatj^-making Powers 
of the Senate," for an interesting discussion of the question. The 
occasions upon which the President has of his own accord asked for 
the formal advice of the Senate as a preliminary to undertaking 
a negotiation are fairly numerous. This, however, puts the matter 
on an entirely different footing from that of King's resolution. 

^ See p. 156 above. 

^ Very little has been published concerning this treaty. Lyman, 
Diplomacy oj the United Slates, I. 453, note, simplj' mentions its 
conclusion and amendment. In C'h. XIIL Lyman gives an account 
of our diplomatic relations with Sweden down to 1828. The Treaty 
of 1816 was negotiated to replace the treaty of 1783. 



END OF THE FORMATIVE PERIOD 209 

State, and our diplomatic agents abroad, it is 
proposed to trace here the history of the treaty 
subsequent to its quahfied" acceptance by the Senate.^ 

The three articles rejected by the Senate gave 
the United States certain privileges in connection 
with the importation of West Indian goods into 
Sweden in American bottoms, and allowed Sweden 
compensating advantages in the trade between the 
Baltic nations and the United States. 

The resolution of the Senate was passed in Febru- 
ary, 1817,- not two weeks before Monroe was to 
succeed Madison as chief executive. • The out- 
going President evidently took no action towards 
ratifying the amended treaty, and it was one of 
the subjects which claimed the attention of the new 
administration. Apparently Monroe left Wash- 
ington on his tour through the eastern and western 
states without having discussed the treaty with 
Richard Rush, temporarily in charge of the State 
Department. The matter was forced upon the 
attention of the department, however, by the 

1 Of the three articles rejected by the Senate, Article 3 provided 
that all goods, the growth, produce, or manufacture of the West 
Indies, which might be imported into Sweden and Norway in vessels 
of those states might also be imported in American vessels at a 
rate of duty not more than ten per cent greater than that paid by 
Swedish or Norwegian ships. Article 4 stipulated reciprocal terms 
with reference to cargoes originating in the countries surrounding 
the Baltic, and imported into the United States in Swedish or Nor- 
wegian bottoms. Mixed cargoes were especially provided for. 
Article 6 provided a means of determining what goods were to be 
considered as having been produced in the respective states. These 
articles appear in brackets in the treaty as printed in Conventions 
and Treaties, II. 1742, et seq. 

^ Sen. Exec. Jour., III. 78. 



210 ■ THE SENATE AND TREATIES 

necessity of formulating instructions for Jonathan 
Russell, who was in the United States on leave, and 
at this time was preparing to return to his post.^ 

In a letter written on June 25, Rush took the 
matter up with the President and discussed at 
length the courses of action that lay open to the 
executive. He stated: 

The new treaty has been adopted with the exception 
of the third, fourth, and sixth articles. The two first 
relate to the West Indies and Baltic trade, and settle also 
the rule of paying duties on a mixed cargo. The sixth 
barely prescribes the evidence which is to stamp the 
reality of what purports to be the articles of the growth, 
produce or manufacture of each country respectively. 

As to these three articles, the necessity for any specu- 
lative inquiry or opinion upon their nature or probable 
operation, is, I presume, at an end. The Senate has 
seen fit to reject them. 

The question then is, what do we expect, or what is 
it to our interest, or our intention, to ask? 

Are we willing to take the treaty stripped of these 
three articles? Upon this head I need your opinion. 

1 On July 20 Rush wrote to Monroe saying that Russell had 
requested that his instructions be sent to Boston by the fifteenth, 
but evidently had not been there himself at that time. Rush 
wrote, "I hope that my letter of the 25th of June (I think that was 
the date) may place this subject before you with sufficient fullness 
to enable you to say a word to me, notwithstanding the din that 
surrounds you. If left to myself, I should simply instruct Mr. 
Russell to have the treaty adopted (should Sweden consent), with 
the mere exception of the three articles, making the proper explana- 
tion to that court touching their exclusion. But this is a step I 
cannot take without your sanction, never having heard the least 
opinion from you relative to the treaty." Rush to Monroe, July 20, 
1807. Monroe Papers, Division of Manuscripts, Library of Con- 
gress, Vol. XVI. 



END OF THE FORMATIVE PERIOD 211 

If we are the instructions will come within the narrowest 
compass. 

But will Sweden take it stripped of them? I cannot 
see why not, for to be frank, had they stood, it seems to 
me they would have been most to our advantage. Mr. 
Russell may be better able than any of us to answer the 
question. 

If Sweden will not thus take it, does the whole treaty 
fall to the ground, or have we any modifications to propose, 
and what are they? ^ 

The President's solution of the problem appears 
in the instructions which Rush drew up and for- 
warded to Russell under date of August 14. After 
referring to the rejection of the three articles, Rush 
proceeded : 

The treaty being thus altered by the government, 
cannot longer be regarded as the same instrument which 
was assented to by the Government of Sweden. It is 
proper, therefore, that it should again be submitted to 
that Government with a view to its approbation in the 
shape which it now presents. In the event of its being 
approved, a new ratification, at Stockholm, will, of course, 
become necessary. 

In apprizing the Government of Sweden of the ex- 
clusion by this Government of the articles in question 
after they had been regularly agreed to by a minister 
acting with full powers on its behalf, a task, will devolve 
upon you which The President feels a confidence will be 
performed with the best discretion and effect which such 
a case will allow. The true explanation must be sought 
in the principles and structure of the executive branch 
of our Government. You are well informed upon this 
subject, and will take care to impress the just views 
which belong to it upon the Court of Sweden. You will 
cause it to be distinctly understood, that it is a funda- 

1 Monroe Papers, Division of Manuscripts, Library of Congress, 
XVI. 



212 THE SENATE AND TREATIES 

mental law of our system, that eveiy treaty made by a 
minister of the United States, with whatever exact ad- 
herence to his powers and instructions and whatever 
the nature of its provisions, is still Hable, when presented 
to the Senate for ratification, to be modified, or even to 
be totally rejected. There are already precedents in 
our history of a similar exercise of this authority. It 
will be familiar to your recollection, that the Treaty of 
Amity, Commerce and Navigation between the United 
States and Great Britain, entered into at London on the 
19th of November, 1794, and signed by the two Pleni- 
potentiaries, Mr. Jay and Lord Grenville, had part of 
the 12th article relating to the West India Trade after- 
wards expunged by this Government, to which Great 
Britain subsequently assented. Of this precedent you 
will naturally make the fit use. Above, all, you will 
give the explicit assurance,^ that the rejection of the 
articles must not be interpretated into the least absence 
of consideration or respect for the Government of Sweden. 
Any such inference, as it would be contrary to the fact 
would be painful to The President; and he cherishes the 
confident hope that it will not be drawn. On this head 
it is The President's particular desire, that your assurances 
should take a character of utmost conciliation, as truly 
conforming to the spirit by which alone this government 
is animated towards the Crown-Prince. 

It may be, that Sweden will not accept the Treaty, 
diminished as it now is from its former state, under the 
mere repetition of the ceremony of ratification. In such 
an event it will be considered as null, and you are em- 
powered to open the negotiation anew. In forming an- 
other Treaty, the instructions heretofore given you in 
the letter from the Department of May the 20th, 1816, 
will be your guide. It is not seen that any advantage 
would flow from this course. If pursued, it must lead, 
substantially, to the same result. Yet it will be at j'-Qur 

1 Not uimaturuUy, the Senate ameudinents to the King-Iiawkes- 
bury convention were not mentioned. 



END OF THE FOEMATIVE PERIOD 213 

option even to offer it in the first instance if you are led 
to think that it would be preferred by Sweden, and 
much more if there is reason to suppose that the other 
course would not be acceded to. It might thus prevent 
the dilemma of a refusal.^ 

These instructions are a revelation of the careful, 
tentative manner in which the United States in 
1816 was attempting to adjust her diplomatic in- 
tercourse to the necessities of her constitution. 
The treaty not only had been signed by the Swedish 
plenipotentiary, but actually had been ratified by 
the King. The greatest care, therefore was to be 
taken to assure Sweden that the rejection of three 
of the articles which had been agreed upon did not 
imply any lack of respect for the Swedish govern- 
ment. Evidently it was thought entirely possible 
that Sweden would follow the example of Great 
Britain and decline to acquiesce in the amendment 
of the treaty. The instructions show clearly that 
th^ government felt that in the circumstances such 
action could not be justly resented by the United 
States, and authorize Russell to accept such a de- 
cision and to proceed with the negotiation of a new 
treaty. The suggestion that it might be inadvisable 
to request Sweden to accept the mutilated treaty 
is evidence that the American government realized 
that the proposal was not in accordance with the 
recognized practice of international intercourse. 

Upon his return to Stockholm Russell at once 
proceeded to explain the situation to the Swedish 

^ Richard Rush to Jonathan Russell, August 14, 1817. MS. 
State Department, Bureau Index and Archives, U. S. Ministers, 
Instructions, VIII. 145, et seq. 



214 THE SENATE AND TREATIES 

government, and in December, 1817, he reported 
to the Secretary of State his first conversations with 
Count d'Engestrom, the Swedish minister of foreign 
affairs. These led him to beheve that the treaty- 
would ''eventually be accepted with the retrench- 
ment made by the Senate." ^ Early in January he 
submitted to Count d'Engestrom a written memoir 
which officially set forth the facts which he had 
been instructed to lay before the Swedish court. ^ 
After a brief correspondence upon the points at 
issue,^ the Swedish minister decided that the changes 
made by the United States Senate were neither 
subversive to the interests of his government nor 
derogatory to its honor, and therefore, that the 
treaty might be accepted as amended. His formal 
notification to Russell of this decision sets, forth the 
view of the Swedish government in the matter, as 
follows : 

It is by the express order of the King, his August 
Sovereign, that the undersigned has now the honor to 
declare to Mr. Russell, that the three articles which the 

1 Russell to Adams, December 29, 1817, MS. State Depart- 
ment Bureau of Indexes and Archives, Stockholm Legation, J. 
Russell, 1812-1813, Vol. I. 

2 Russell to d'Engestrom, January 4, 1818, ]\1S. State Depart- 
ment, Stockholm Legation, J. Russell, 1812-1813, Vol. I. 

* Under date of January 22 Russell wrote to Adams, "In a 
conversation with Count d'Engestrom, on the 3d instant, at which 
Count Marnet, who also signed the treaty, was present, I was given 
very distinctly to understand that the treaty, as modified bj^ the 
Senate, would be accepted by this Government. I was desired, 
however, to give a more formal shape to the explanations which 
I had offered on the subject that they might be duly submitted to 
the consideration of the Prince Royal and of the Council of State." 
Russell to d'Engestrom, January 22, 1818, Ibid. See also same to 
same, January 12, 1818, Ibid. 



END OF THE FORMATIVE PERIOD 215 

Senate of the United States has believed ought not to be 
adopted, being of no particular interest for Sweden, 
and having been proposed only in the belief that they 
would be agreeable to the American Government, the 
King does not place any importance in maintaining them. 
His Majesty accepts and ratijfies, consequently, the 
treaty as it has been ratified by the Senate, that is to say, 
with the exclusion of Articles III, IV, and VI, and con- 
sequently he has ordered the undersigned to proceed to 
the exchange of ratifications to be carried out in the man- 
ner which you suggest, as soon as Mr. Russell shall have 
received the ratification of the United States duly sighed 
by the authorities of that country.^ 

Russell agreed that the exchange of ratifications 
should take place at Stockholm,- and exchange was 
effected on September 25, 1818.^ 

1 Count d'Engestrom to Russell, January 24, 1818, MS. State 
Department, Stockholm Legation, J. Russell, 1812-1813, Vol. I. 

2 The reasonable nature of this arrangement is recognized by the 
American negotiator in the following excerpt from a report to the 
State Department: "You will perceive that, as I suggested in my 
letter of the 29th ulto, the exchange of the ratifications is expected 
to take place here. I could not very strenuously object to this 
course after having been reminded that one ratification, duly exe- 
cuted by this Government had already been sent to Washington 
and returned hither without effect." Russell to Adams, January 26, 
1818. Ihid. 

2 Treaties and Conventions Between the United States and Other 
Powers, II. 1742. 



BIBLIOGRAPHY 

BIBLIOGRAPHICAL AIDS 

Channing, Hart, and Turner, Guide to the Stiiidy and Reading of 
American History (revised and augmented edition, Boston, 1912). 
Useful in solving bibliographical problems. 

A. B. Hart, Manual of American History, Diplomacy, and Govern- 
ment (Cambridge, 1908). This manual is useful in the handling 
■of secondary material, particularly on account of its references to 
specific topics. 

J. N. Larned, editor. The Literature of American History: a 
Bibliographical Guide (Boston, 1902). "A. bibliographical guide in 
which the scope, character, and comparative worth of books in 
selected lists are set forth in brief notes by critics of authority." 
This work is of greater usefulness in the evaluation than in the 
location of material. There is no separate treatment of any of the 
subjects directly Hinder consideration. 

J. B. Moore, Digest of International Law (Washington, 1906, 
8 vols.) contains a multitude of suggestive references both to second- 
ary and source material bearing upon many of the topics under 
■consideration. It is an invaluable bibliographical aid in this field. 

A. B. Hart, The Foundations of Americaii Foreign Policy (New 
York, 1901). The concluding chapter, a "Brief Bibliography of 
American Diplomacy," so far as it goes, is useful in estimating the 
worth of secondary works. The arrangement is topical and each 
book cited is briefly described and weighed. 

Justin Winsor, Narrative and Critical History of America (Boston, 
1886-1889, 8 vols.). In Vol. VII, pp. 461-562, is given an estimate 
■of earlier works on the wars of the United States, which is of value. 
Vol. VIII, pp. 413-478 is devoted to a description of the manuscript 
sources of American History, followed by a description of printed 
authorities, 1776-1850. The notes to Dr. Angell's article, The 
Diplomacy of the United States, Chapter VII, Vol. VII, are critical 
and suggestive. 

J. S. Bassett, The Federalist Sy stein. 

217 



218 BIBLIOGRAPHY 

Edward Channing, The Jeffersonian System. (The American 
Nation: A History, Vols. XII and XIII, New York, 1906.) The 
critical essays on authorities which form the concluding chapters 
of these two works are useful in a study of any subject within the 
period covered. 

Ben Perley Poore, Descriptive Catalogue of the Government Publi- 
cations of the United States, September 5, 1774-March 4, 1S81 (Wash- 
ington, 1885). Although practically superseded by more recent 
guides, Poore is still useful in the location of material to be found 
in the public documents. The work is in two parts, the first part 
being a descriptive catalogue chronologically arranged, and the 
second an index, alphabetically arranged. 

Elfrida Everhart, Handbook of United States Public Documents 
(Minneapohs, 1910) is a well-arranged work which is of great 
assistance in mastering the mysteries of government publications. 
Part 1 deals with Congressional Documents, Part 2 with Depart- 
mental Publications, and Part 3 with Publications of the Independent 
Publishing Offices of the Government. 

U. S., Superintendent of Documents, compiler. Check List of 
United States Public Documents, 1789-1909. (Washington, 1911. 
3d Edition, revised and enlarged.) The arrangement is in accord- 
ance with a complicated, but uniform system based upon the or- 
ganization of the government. This is the most valuable aid in 
finding documentary material; it is the key to the serial numbers. 

T. H. McKee, compiler, {Indexes to) The Reports of the Select 
and Special Committees, United States Senate (Washington, 1887), 
barely touches the period treated in this study, as it commences 
with the year 1815. 

■ Van Tyne and Leland, Guide to the Archives of the Government of 
the United States in Washington (Washington, 1907, revised edition 
by W. G. Leland) is a useful guide to the archives of the State 
Department and of the Senate. 

A. C. McLaughlin, Report on the Diplomatic Archives of the 
Department of State, 1789-lSJfi (Washington, 1906). This is an 
invaluable guide to the student who wishes to use the material in 
these archives. It estimates the proportion of material in the 
archives which has not been printed to that which has been; it 
describes and analyzes the various series of documents and the 
system of indexing for each one; it points out some of the difficulties 
in the use of the diplomatic correspondence that are bound to be 
encoxmtered by the student who is not thoroughly familiar with the 
files of the department. 



BIBLIOGKAPHY 219 

MANUSCRIPT SOURCES 

In the Bureau of Rolls and Library are to be found the originals 
of the treaties of the United States. Each treaty is filed in a large 
manila envelope containing also the official statement of the action 
taken by the Senate with reference to the treaty. This is in the 
form of a transcript of the Senate resolution authenticated by the 
signature of the clerk of the Senate. Besides this document, which 
is missing in only a few cases, other interesting material throwing 
light on the negotiation of a treaty, its reception by the Department, 
its ratification, the exchange of ratifications, or some other phase 
of its history frequently has been filed. To each treaty is attached 
the ratification and the proclamation by the President, authenticated 
by the Great Seal of the United States and attested by the signature 
of the Secretary of State. The ratification precedes the treaty 
itself, and in case of amendment by the Senate the amendments 
usually are incorporated in the ratification rather than in the treaty. 
The proclamation is bound after the treaty. The treaties on file 
are divided into two series, the first comprising the perfected, and 
the second the unperfected instruments. Those in each group are 
arranged alphabetically by countries, and chronologically under 
each country. The perfected series are numbered from 1 to about 
600; the unperfected from A to Z, and then from Al to Zl, and 
so on. 

The diplomatic correspondence of the United States is filed in 
the Bureau of Indexes and Archives. The reader is referred to 
A. C. McLaughlin's report on these archives for a description of 
this correspondence. 1 Most of the material bearing directly upon 
the subject in hand during the period under consideration seems 
to have been pubhshed, in one form or another. The principal 
value of this correspondence in studying the action of the Senate 
upon treaties lies in the fact that very frequently such action is 
explained by the Department in its instructions to the American 
envoy accredited to the other party to the treaty; or the possibihties 
of Senate action of a certain sort may be discussed; or the course 
generally followed by that body in given circumstances may be 
set forth. Frequently such information is unobtainable elsewhere. 
In addition, the effect of Senate action upon the government of the 
other party to the treaty may be most directly traced in this cor- 
respondence. 

1 McLaughlin, Report on the Diplomatic Archives of the Depart- 
ment of State, 1789-1840 (Washington, 1906). 



220 BIBLIOGRAPHY 

For the early period the executive files of the Senate contain little 
material that is not in print. The file room is on the top floor of the 
Senate wing and the records are filed in small steel cases placed in 
a filing cabinet. The documents are uncatalogued and unindexed. 
Those pertaining to each session are folded into small compass, 
tied with tape, and forced into the case in which they belong. Ap- 
parently Congress has not seen fit to take adequate measures for 
their preservation, or for rendering them available for use. In 
addition to material stored in the manner just described there are 
numerous chests containing all manner of documents relating to 
the executive business of the Senate, the condition of which is such 
that its use would be a Herculean task. 

The files of the Senate committee on Foreign Relations are 
conspicuous by their almost total absence. For the brief time that 
the committee existed during the period under consideration there 
are none at all, the student being compelled to resort to the official 
reports of the committee, and the personal correspondence of its 
members. It is interesting to note, however, that until recently 
the records of this great committee have received little or no atten- 
tion from any one. Until the time of Hawkins Taylor no official 
record was kept of the meetings, although for the last twenty years 
a brief journal of the proceedings has been preserved. Much of 
the most important business done by the committee, however, is 
transacted by correspondence between the chairman and the Secre- 
tary of State. From time immemorial each successive chairman 
seems to have regarded this correspondence as being his own prop- 
erty, and has carried away such letters among the files of his personal 
correspondence. What has been left has been turned over to the 
executive clerk, who has stored it with other documents in the 
attic of the Capitol. No attempt has been made to make this 
material available for use, either by statesmen or by historical 
investigators.^ 

1 This information was derived from a personal examination of 
such files as the committee possesses, and from conversations with 
the late Senator Stone and Senators Shiveley, Smith, and McCum- 
ber, of the Committee on Foreign Relations, with the clerk of the 
committee, and with the executive clerk of the Senate. Pre- 
viously to December 20, 1794, the Senate sat with closed doors 
in legislative as well as in executive session. The result is that for 
the years previous to that date the Aunols contain no more than a 
journal of the proceedings. For the early sessions parts of records 
of some executive sessions are included. These are dangerous to 



BIBLIOGRAPHY 221 



Public Documents 

Journal of the Executive Proceedings of the Senate of the United 
States of America (Washington, 1828, 3 vols.)- These three volumes 
cover the period from the commencement of the first, to the ter- 
mination of the nineteenth Congress, — 1798 to 1829. They are 
journals only, and contain the record of the proceedings of the 
Senate in executive sessions and in a few confidential sessions. 
Vol. I covers the period from 1789 to 1805, Vol; II from 1805 to 
1815, and Vol. Ill from 1815 to 1829. 

Annals of the Congress of the United States (Washington, 1834- 
1856, 42 vols.). The period under consideration is covered by 
volumes 1 to 35. The several volumes are not numbered serially, 
but are identified by the name of the congress, sometimes of the 
session, and always by the period of time covered. Throughout 
the period the reports of the debates are incomplete and fragmentary. 
Many of the longer, set speeches were revised by their authors for 
publication, or if previously prepared were printed as written. 
But the day to day debates are far ffom being fully reproduced. 

Walter Lowrie and Matthew St. Clair Clarke, editors, American 
State Papers; Documents, Legislative and Executive, of the Congress 
of the United States; Class I, Foreign Relations (Washington, 1832- 
1859. Folio, 6 vols., 1789-1828). In these volumes are printed 
the annual messages of the Presidents, their special messages upon 
foreign relations, and, so far as they were available, the corre- 
spondence and other papers on the subject submitted by them to 
Congress or to either house thereof; also many reports of Senate 
and House Committees, and miscellaneous documents. The 
documents are arranged chronologically as transmitted to congress, 
except the annual messages, which appear in a chronological series 
(for the period 1789-1815) in Volume I. It should be noted, that 
the documents which appear in this collection do not comprise all 
of the diplomatic correspondence for the period covered. Professor 
McLaughlin estimates that not more than one-fourth of the material 
in the archives of the Department of State has been printed here. 
And he adds, "The materials printed in the State Papers very often 
appear only in extract. It is vmnecessary to say that, so far as their 

use, however, as the account of the proceedings for any one day is 
apt to be incomplete, and in some cases no notice whatever is taken 
of executive business. In either case there is nothing to indicate 
the omission. 



222 BIBLIOGRAPHY 

importance for diplomatic history is concerned, the omitted portions 
are not the least interesting." 

Lowrie and Clarke, editors, American State Papers: Class II, 
Indian Affairs. In this series of volumes the same thing is done 
for the documents illustrating the relations of the United States 
with Indian tribes as is done in Class I for those pertaining to the 
foreign relations of the nation during this period. 

Hawkins Taylor, compiler, Compilation of Reports of Committee on 
Foreign Relations, United States Senate, 1789-1901 (Washington, 
1901, 8 vols.) The subjects treated in the several volumes are 
arranged as follows: 

I. Claims of the United States against foreign governments. 
II. The same. 

III. The same; claims of United States citizens against the 

United States; of citizens of foreign governments against 
the United States; of consular and diplomatic officers of 
the United States against the United States for reimburse- 
ment and extra pay. 

IV. Mediterranean Commei'ce; nominations; authorizations to 

accept decorations; international exhibitions; miscel- 
laneous matters. 
V. Tariffs of the several countries; boundary and fishery dis- 
putes. 
VI. Diplomatic Relations with foreign nations; Hawaiian Islands. 
VII. Diplomatic relations with foreign nations; affairs in Cuba. 
VIII. Treaties and legislation respecting them; general index. 

It is difficult for one who has been compelled to use this collection 
to speak of it in terms marked by the restraint imposed by the 
amenities of scholarship. Particularly for the early period, the 
years previous to 1816, the work can only be referred to as a hodge- 
podge of reports selected according to no apparent rules from the 
Executive Journals, the Annals of Congress, and Congressional 
documents, and arranged upon a system which can be intelligible 
to no one but the compiler. Previous to 1816 no Senate standing 
committee on foreign relations existed. Yet the compiler of this 
work felt free to refer to any committee which made a report on a 
subject which pertained to foreign relations as "the Committee on 
Foreign Relations," without giving any indication that he was 
speaking of a select committee which perhaps had an existence of 
twenty-four hours only, and which never had been called "the 
Committee on Foreign Relations" by any one but himself. Further, 



BIBLIOGRAPHY 223 

while he selected for printing many of the committee reports upon 
matters concerning foreign relations, other reports he ignored 
entirely. And, finally, many of the reports which appear are un- 
accompanied by any citations to indicate the source from which 
they were taken, nor is there any general explanation which covers 
this point. On the whole, this ponderous collection has been 
rendered as nearly useless to the scholar as such an imposing mass 
of historical material weU can be. 

J. H. Haswell, compiler, Treaties and Conventions Concluded 
Between the United States of America and Other Powers Since July 4, 
1776. Containing notes, with references to negotiations preceding the 
several treaties, to the Executive, Legislative, or Judicial construction 
of them, and the causes of the abrogation of some of them; a chrono- 
logical list of treaties; and an analytical index (Washington, 1889). 

The reader is referred to the preface of this volume for a descrip- 
tion of previous editions of the treaties of the United States. 

W. H. Malloy, compiler. Treaties, Conventions, International 
Acts, Protocols and Agreements between the United States of America 
and Other Powers, 1776-1909 (Washington, 1910. 2 vols. Sen. Ex. 
Doc, No. 357, 61st Congress, 2d Session). Also Supplement to 
above. Sen. Doc. 1063, 62d Congress, 3d Sess., Garfield Charles 
compiler (Washington, 1913). 

This collection is better edited than is the Haswell edition 
but unfortunately Davis's notes do not appear in this edition. 

J. D. Richardson. A Compilation of the Messages and Papers of 
the Presidents, 1789-1902 (Washington, 1905). 

Senate Manual (Washington, 1918). In addition to the present 
standing rules and orders of the Senate, the manual includes Jeffer- 
son's Manual, and other useful material. 



WRITINGS AND BIOGRAPHIES OF STATESMEN 

With the exception of the Monroe manuscripts, in the Division 
of Manuscripts, Library of Congress, there is little, if any, unpub- 
lished material of this sort which bears upon the subject during the 
period under consideration. In the published correspondence, 
memoirs, and biographies of the statesmen concerned a considerable 
amount of information is to be gleaned. It is apparent, however, 
that these men were little interested in matters of procedure, or in 
recording facts concerning the development of institutions. * 



224 BIBLIOGKAPHY 



MONOGRAPHS AND SPECIAL STUDIES 

S. B. Crandall, Treaties, Their Making and Enforcement (New 
York, 1904; 2d edition, Washington, 1916). This work originally 
appeared as No. 1, Vol. XXI, Columbia University, Studies in 
History, Economics, and Public Law. Part 1 deals with the treaties 
of the United States, Part 2 with those of foreign nations, while 
Part 3 is given over to a discussion of "The Operation of Treaties." 
The book is an historical treatment of the subject, and is based 
upon wide research in both published and unpublished sources, 
which are fully indicated in numerous footnotes. It contains a 
wide amount of information, presented in such form as to be readily 
accessible. The second edition is revised and considerably enlarged, 
and includes a digest of the decisions of American courts construing 
treaties. 

C. H. Butler, The Treaty-making Power of the United States 
(New York, 1902, 2 vols.) is an extensive description and analysis 
of every phase of the treaty power of the nation. It is useful as 
a reference work, and in the footnotes presents a vast amount 
of material from the public documents, judicial decisions, the works 
of publicists, the papers and biographies of statesmen and jurists 
and from other sources. Chapter X (Vol. I) on the treaty-making 
power and the relations of both houses of Congress thereto, and 
Chapter XIII (Vol. II), on the treaty-making power as it has been 
exercised with Indian tribes are the parts of the work which bear 
most directly upon the subject of this monograph. 

J. B. Moore, Digest of International Law (Washington, 1906, 
8 vols.) is indispensable to the student of any phase of American 
history touching upon diplomacy or international law because it 
contains a very large amount of source material not elsewhere 
available outside of the archives in Washington, and brings together 
the best work of American and foreign authors upon the topics 
treated. 

J. C. B. Davis, Notes Upon the Foreign Treaties of the United 
States, Treaties and Conventions Concluded Between the United States 
of Amefi-ican and Other Powers since July 4, 1776 (J. H. Haswell, 
editor, Washington, 1889), pp. 1219-1406. "Davis's Notes" are 
familiar to all students of American diplomatic history. 

Willis F. Johnson, America's Foreign Relations (New York, 1916, 
2 vols.). Although deficient in its treatment of the revolutionary 
period, this book is, perhaps, the best and most complete exposition 
of the subject. 



BIBLIOGRAPHY 225 

J. W. Foster, A Century of American Diplomacy; Being a Brief 
Review of the Foreign Relations of the United States 1776-1876 (Bos- 
ton, 1900). A. B. Hart declares (Foundations of American Foreign 
Policy) that this is the strongest book on American diplomacy since • 
the Civil War. It is useful in furnishing a general outline of diplo- 
matic events. 

J. W. Foster, The Practice of Diplomacy: As Illustrated 
in the Foreign Relations of the United States (Boston, 1906). This 
is a thorough work by a diplomat and a scholar. Chapter XII, 
concerning the negotiation and framing of treaties, and Chap- 
ter XIII, upon their ratification, bear directly upon the subject 
of this monograph. 

Theodore Lyman, The Diplomacy of the United States (Boston, 
1828, 2 vols.), although obviously antiquated, is still useful for the 
period covered (1778-1828). It contains considerable original 
material. 

Eugene Schuyler, American Diplomacy and the Furtherance of 
Commerce (New York, 1886) contains little or no material bearing 
on the action of the Senate upon treaties, although it gives a fairly 
acceptable outline of many of the commercial treaties of the United 
States, and the manner of their negotiation. 

W. H. Trescot, The Diplomatic History of the Administrations of 
Washington and Adams (Boston, 1857) contains some original mate- 
rial which throws light upon the action of the Senate on the Jay 
Treaty, and devotes rather more space than do most authors to the 
activities of the upper house. It is characterized by Bassett (The 
Federalist System) as "clear and fair, but not brilhant." 

E. S. Corwin, The President's Control of Foreign Relations (Prince- 
ton, 1917). Chapter III of this work contains a discussion of the 
relations of the President and the Senate in the making, enforce- 
ment, and termination of treaties. It is not, however, exhaustive, 
from the historical standpoint. 

E. S. Corwin, National Supremacy. Treaty Power vs. State Power 
(New York, 1913). Except that in the opening chapter the author 
discusses the general nature of the treaty-power as conceived of in 
the early days of the government, his work has little direct bearing 
upon the exercise by the Senate of this power between 1789 and 
' 1817. With reference to the activities of the Senate during later 
periods it is of great importance. 

Charles H. Burr, The Treaty-making Power of the United States 
and the Methods of its Enforcement as Affecting the Police Powers 
of the States (Proceedings of the American Philosophical Society, 



226 BIBLIOGRAPHY 

Vol. LI, Philadelphia, 1912). "The Crowned Essay for which the 
Henry M. Phillips, Prize of two thousand dollars was awarded, on 
April 30, 1912, by the American Philosophical Society." As its 
title indicates, the general purpose of this essay is much the same as 
is that of Professor Corwin's. The introductory chapter, which 
includes an excellent sketch of the evolution of the treaty clause 
of the Constitution in the Federal Convention, will be found valu- 
able in any study of the treaty-power. 

Henry Cabot Lodge, " The Treaty-making Power of the Senate," 
in A Fighting Frigate, and Other Essays arid Addresses (New York, 
1902) is a stimulating essay, the purpose of which is to show that 
the Senate has the power to participate in the making of treaties 
at all stages, from negotiation to ratification, and that they have 
exercised this power upon a great many occasions from 1789 to 1902. 

Gaillard Hunt, The Department oj State of the United States, 
Its History and Functions (New Haven, 1914). This is an able 
work by an accomplished scholar who is particularly well qualified 
to write upon this subject by long service in the Department. The 
book is useful in many ways to those who study any activity with 
which the Department of State is connected. 



INDEX 



Abrogation of Treaties of 1778, 
and Consular Convention 
with France, 114-118. 
Adams, Henry, History of the 
United States, 137, 139, 146, 
152, 157, 184, 188. 
Allen, G. W., Our Navy and 
the Barbary Corsairs, 109, 
157. 
Adams, John, President of Sen- 
ate, 1 ; treaties of administra- 
tion of, 107-129; message to 
Senate, in re French treaty, 
1799, 122; little progress m 
development of foreign re- 
lations committee during ad- 
ministration of, 176. 
Adams, John Quincy, nomi- 
nated as minister to Prussia 
and confirmed after opposi- 
tion, 112; committee, 147, 180, 
200; and treaty of 1805 with 
Tripoli, 156-168; committee 
membership, 172; opposition 
to as envoy to England, 187; 
Memoirs of John Quincy 
Adams. 24, 86, 143, 147, 160, 
162, 163, 164, 166, 167, 172. 
Advice, of Senate, Washington 
seeks as to course with Great 
Britain, 1790, 59; precedent 
of Jay treaty as to obliga- 
tion of President to seek, 79- 
80; that new negotiations be 
undertaken, 80-81; upon in- 
terpretation of treaty of 1788 
■v^ith France, 102 ; sought and 
given as to carrying out 
debate upon propriety of to 
treaty with Algiers, 102-103; 
President, 200-208. 
Advice and consent of Senate, 
obligat'on of Senate to give 
to ratification of treaties con- 



cluded by President, 6-10; to 
French consular convention 
of 1788, 4-10; to ratification 
of treaties with Indian tribes 
to be given in same form as 
to that of foreign treaties, 12- 
16; to ratification of treaty 
with six nations refused by 
Senate, 15-16; coextensive 
with power to "make 
treaties" and applies to en- 
tire process of treaty-making, 
17 ; to be sought by President 
by personal conference, 18- 
20; given in advance to pro- 
posed treaty with Creek 
Indians, 1789, 21-26; given in 
advance to proposed addi- 
tional article to Creek treaty 
of 1789, 27-28; given to ratifi- 
cation of Creek treaty of 
1789, 29 ; given in advance to 
proposed treaty with Chero- 
kees, 1790, 30-32; to ratifica- 
tion of Cherokee treaty, 33- 
34 ; withheld to ratification of 
treaty with Wabash and 
lUinois Indians, 36-37; to ad- 
ditional articles, Indian 
treaties, 39; that President 
negotiate treaty redeeming 
Algerine captives, 43; that 
President suspend such nego- 
tiations, 43-44; privilege of 
members to record dissent to 
resolution of, 29, 71; sought 
and given in advance to pro- 
posed treaty with Spain, 1792, 
54-56; to ratification of Jay 
treaty, 74-83; effect of prece- 
dent of Jay treaty upon seek- 
ing in advance, 79-80 ; to rati- 
fication of treaty of 1796 with 
Creek Indians, with reserva- 



227 



228 



INDEX 



tion, 99; when sought in ad- 
vance created obligation to 

'consent to ratification, 105; 
to French treaty of 1800 
with amendments, 121 ; to 
ratification, of convention of 
1802 with Spain. 130-132; to 
Louisiana purchase treaties, 
142; to ratification King- 
Hawkesbury convention, witli 
amendment, 148. 

Algiers, treaty with, 1795, 40- 
53; Senate consulted as to 
executing treaty with, 102; 

Amendment, first suggested bj^ 
President in case of treaty 
with Wabash Indians, 1793, 
35; .of Jay treaty, 75; 
authority of Senate to sug- 
gest, 77, 79; of Jay treaty, 
77-82; to treaty does not re- 
quire re-submission if other 
partv ratifies, 83-86 ; to treatv 
of 1796, with Creek Indians 
failed, 98-99; of treatv of 
1797 with Algiers, 108-112; of 
King-Hawkesbury conven- 
tion, 147; Great Britain ob- 
jects to, on principle, 150- 
151; of ti-eaties by U.S. Sen- 
ate contrary to contemporary 
international practice, 154- 
156. 

Anderson, Joseph, committee 
membership. 180, 183, 184, 
200 ; upholds power of Sen- 
ate to participate in negotia- 
tion of treaties, 212. 

Attorney General, opinion of as 
to consultation of Senate in 
advance of negotiation, 38. • 

Baldwin, Abraham, committee, 
131, 134, 160. 

Barbour, James, committee, 
193; first chairman of 
Foreign Relations committee, 
194, 198. 

Barlow, Joel, U.S. Consul Gen- 
eral at Algiers, negotiates 
treatv of 1797 with Tunis, 
108. 



Bassett. J. S.. The Federalist 
System, 58, 217. 

Bayard, James A., opposition to 
as envoy to England, 187; 
opposition to advice to 
President, 201-202. 

Bibb, W. W. committee, 190; 
resolution, 198. 

Bingham, William, on commit- 
tee. 108, 111, 112, 177. 

Bonaparte, Joseph, minister 
appointed by Napoleon to 
treat with American envoy, 
1799. 

Bonaparte, Napoleon. and 
treaty of 1800 with France, 
116-117. 121, 123. 

Border Posts, retention of by 
England, 61. 

Bradley, S. R., committee, 131, 
134, ' 160, 180, 182, 184; and 
treatv of 1805 with Tripoli, 
160-167. 

Brown, James, committee, 190. 

Brown, John, committee, 52. 

Brown, W. G.. Life of Oliver 
Ellsworth, 63, 74, 75. 

Burr, Aaron, chairman of com- 
mittee on treaty with 
Wabash and Illinois Indians, 
35; opposition to ratification 
of Jay treaty, 75-83 ; motion 
to rescind order of secrecy 
concerning Jav treaty, 89. 

Burr, C. H., The Treaty-mak- 
ing Powers of the United 
States and the Methods of 
Its Enforcement as Affecting 
the Police Powers of the 
States, 2, 11, 225. 

Butler, C. H., The Treaty-mak- 
incj Power of the United 
States, 11, 224. 

Butler, Pierce, chairman com- 
. mittee on Algerian captives, 
44, 59 ; seconils motion rec- 
ommending new negotia- 
tion with Great Britain, 80; 
introduces resolution to re- 
quest President to obtain 
modification Louisiana Pur- 
chase treatv, 143. 



INDEX 



229 



Cabinet, advice of as to con- 
sulting Senate in advance of 
negotiations, 38; advice of as 
to re-submission of Jay treaty 
to Senate, 83-86. 

Cabot, George, vote, 36; com- 
mittee, 33, 48 50, 52, 55; one 
of group responsible for Jay 
mission, 63-73. 

Campbell, G. W., committee, 
185. 

Caramalli, Hamet. and treaty of 
1805 with Tripoli, 157-168. 

Carmichael, William, cammis- 
sioner to negotiate treaty 
with Spain, 54-55. 

Chadwick, F. E., The Rela- 
tions of The United States 
and Spain; Diplomacy, 54, 
130, 184. 

Channing, Edward, The Jeffer- 
sonian System, 137, 157, 218. 

Check and Balance theory, 51. 

Cherokee Indians, treaty of 
1791 with, 30-34. 

Chief Justice of United States, 
selected as special envoy to 
England, 66-67 ; opposition to 
appointment of as envoy to 
England, 69. 

Claims, convention of 1802 with 
Spain concerning, 130-136; no 
claims ever adjusted under it, 
133. 

Clay, Henry, committee, 184. 

Coleraine, treaty with Creeks 
signed at, 1796, 95. 

Committee, use of system in 
treaty business during Wash- 
ington's administrations, 105; 
use of in consideration of 
convention with Spain, 1802, 
136; of foreign relations. Sen- 
ate, genesis of, 169-195 (see 
foreign relations, commit- 
tee) ; development of system 
in Senate, 194. 

Congress, appropriation by to 
ransom Algerine captives, 44; 
appropriation for Moroccan 
treaty, 53; kept informed of 
British-American affairs bj^ 
Washington, 61 ; acts of said 



by France to be in contra- 
.vention of treaty of 1788, 
101 ; informed of inadequacy 
of appropriation for executing 
treaty with Algiers, 102; de- 
clares treaties of 1777 and 
consular convention abro- 
gated, 115; special session of 
to consider Louisiana Pur- 
chase, 136. 

Congress, of Confederation, and 
French consular convention 
of 1788, 4-9; rejected Jay- 
Gardoani treaty, 56. 

Congress, Continental, Indian 
treaties signed under author- 
ity of, 1 ; authorized conclu- 
sion of consular convention of 
1788 with France, 4, 6-10. 

Consul, First, of France, see 
Bonaparte, Napoleon. 

Correspondence, diplomatic, 
called for by Senate, 112, 159- 
160; submitted to Senate, 
131, 134, 160-161. 

Council of Advice, Senate 
thought to be, upon treaties 
and appointments, 6; Senate 
acts ' in capacity of, 44-45 ; 
Washington's attitude to- 
wards Senate as, 59; treated 
as, 79; Washington's expe- 
rience showed that Senate 
could not well be, 103-104. 

Crandall, S. B., Treaties, Their 
Making and Enforcement, 83, 
85, 208, 224. 

Crawford, W. H., and story 
that Washington swore that 
he never would go to Senate 
again, 23-24; committee, 183, 
184, 185. 

Creek Indians, treaty of 1789 
with, 16-29; treaty of 1796 
with, 95-100. 

Dana, S. W., committee, 193. 

Davie, William R., appointed 
Minister to France in place 
of Patrick Henry, 115. 

Davis, J. C. B., Notes Upon 
Foreign Treaties of the 
United States, 4, 53, 115 130. 



230 



INDEX 



Dayton, Jonathan, committee, 

119. 
Deas, W. A., American charge 

at London, and ratification of 

Jay treaty, 86-87, 
D'Engestrom, Count, Minister 

of Foreign Affairs, Sweden, 

214-215. 
Dexter, Samuel, committee, 112. 
Duponceau, P. S., 134. 

Eaton, William, and treaty of 
1805 with Tripoli, 157-159. 

Ellsworth, Oliver, vote, 36; on 
Senate committee, 41, 48, 50, 
52, 101, 174; one of group 
responsible for Jay mission, 
63-73; Chief Justice, ap- 
pointed Minister to France, 
1799, 115. 

Famin, Joseph, negotiates 
treaty of 1797 with Tunis, 
108. 

Foreign Affairs, Secretary of, 
and French consular conven- 
tion of 1788, 4-10. 

Foreign Relations, Senate Com- 
mittee on, group similar to, 
73; genesis of. 1805-1815, 
169-195; antecedents during 
Washington's administration, 
170-172; grew out of legisla- 
tive activities of Senate, 172; 
members chosen by ballot, 
172 ; development from select 
committees, 174-175; non-ex- 
istence of during Washing- 
ton's administrations, 175; 
little conscious development 
during John Adams's admin- 
istration, 176; no such com- 
mittee, 1798, 178; real but 
not recognized during second 
Jeffer.son administration, 179; 
development of after 1807, 
181 ; referred to as such, 186 ; 
monopoly of business of 
foreign relations, 189; a 
quasi-standing committee, 
191 ; report of on burning 
New York, 191-192; and 



Treaty of Ghent, 192; first 
standing committee of Sen- 
ate. 193; summary of de- 
velopment of, 194-195. 

Formative Period, Senate and 
treaties at end of, 196-215. 

Fort Hamar, treaties of, first 
treaties to be submitted to 
Senate, 1, 4; considered by 
Senate, 11-16; one of them 
the first treaty to fail of rati- 
fication by Senate, 15-16. 

Foster, Dwight, vote, 36. 

Foster, J. W., A Century of 
American Diplomacy, 58, 61, 
115, 135, 225. 

Foster, J. W., The Practice of 
Diplomacy, 9, 225. 

Fox, Charles James, and ratifi- 
cation of amended King- 
Hawkesbury convention, 152. 

France, consular convention of 
1788 with, 4-10; interpreta- 
tion of treaty of 1788 with, 
101-102; Senate amendments 
to treaty of 1800 with, 114- 
126; seizure and condemna- 
tion of American ships in 
Spanish ports bv, 131 ; Louisi- 
ana treaty with, 136-145. 

Franklin, Benjamin, concluded 
consular convention of 1788 
with France, 4. 

Franklin. Jesse, committee, 185. 



Gaillard. John, committee, 180. 

Gallatin, Albert, opinion upon 
simultaneous submission of 
treaty to Senate and House, 
140; opposition to appoint- 
ment of as envoy to England, 
187; The Writings of Albert 
Gallatin (Henry Adams ed.), 
141. 

Georgia, relations between 
State of, and Creek Indians, 
95-100; legislature requests 
fedei'al goxernmcnt to con- 
clude treaty with Creeks, 95; 
of)position of to Creek treaty, 
97-98, 100; reservation to pro- 
tect rights of, 99. 



INDEX 



231 



German, Obediah, presents res- 
olution, 183. 

Ghent, Treaty of, 192, 196-197, 
203. 

Gibbs, George, Memoirs of the 
Administrations oj Washing- 
ton and John Adams, 64, 68, 
90. 

Giles, W. B., committee mem- 
berships, 180, 182, 183, 184, 
185. 

Gilman, Nicholas, committee, 
182. 

Goodhue, Benjamin, commit- 
tee. 112, 177. 

Goodrich, Chauncy, commit- 
tee, 182, 184. 

Great Britain, and relations 
with Indians of Northwest, 
38-39; relations with leading to 
Jay treaty, 58-65; and ratifi- 
cation of Jay treaty, 86-87; 
and King-Hawkesbury con- 
vention, 145-156; Treaty of 
Ghent with, 192, 196-197, 203; 
commercial convention of 
1815 with. 197; proposed de- 
mands upon, 1806, 200; pro- 
posal to settle differences 
with, 203-204. 

Greenville, Treaty of, 37-38. 
Gregg, Andrew, committee 

memberships, 180, 185. 
Grenville, Lord, Secretary of 
State for Foreign Affairs, and 
ratification of Jay Treaty, 
86-87. 
Gunn, James, vote 81, intro- 
duced resolution advising 
further negotiation with 
Great Britain after conclu- 
sion of Jay treaty, 81 ; com- 
mittee, 177. 

Hamilton, Alexander, suggested 
and considered as special en- 
voy to Great Britain, 65-67; 
withdraws name and suggests 
Jay, 67; assists in drafting 
instructions to Jay, 72-73 ; ad- 
vised amendment of Jay 
treaty, 75-76; opinion as to 
re-submission of Jay treaty. 



84-85; opinion on treaty of 
1800 with France, 118, 121; 
Works of Alexander Hamil- 
ton (Constitutional edition), 
67. 73, 76, 90, 119. 
Hamilton, J. C, History of the 
Republic of the United 
States of America, 64, 67, 70, 
73, 76, 121, 127. 
Hammond, George, Minister of 
England to United States, 
38, 61-62. 
Hancock, John, Governor 
Massachusetts, communica- 
tion on British relations, 59. 
Harlow, R. V., History of 
Legislative Methods for the 
Period Before 1825, 170. 
Harrowby, Lord, and ratifica- 
tion of King-Hawkesbury 
convention, 149-156. 
Hawkesbury, Lord, and King- 
Hawkesbury convention, 145- 
146. 
Hawkins, Benjamin, committee', 

59. 
Henry, Patrick, appointed 
Minister to France, 1799, 
115. 
Hildreth, Richard, History of 

the United States, 157, 184. 
Hillhouse, James, committee, 

180. 
Hosmer, J. K., History of the 

Louisiana Purchase, 137. 
House of Representatives, and 
appropriation for proposed 
Algerine treaty, 44, 46-51; 
kept informed of negotia- 
tions, 51-52; discussion by 
Jefferson's cabinet of pro- 
priety of submitting of 
treatv to before Senate ac- 
tion." 139-142. 
Howell, J. B.. committee, 185. 
Humphreys, F. L., The Life 
and Times of David Hum- 
phreys, 157. 

Indemnity, demanded from 
France. 1799, 115-121. 

Indian Tribes, two treaties 
with first treaties to be sub- 



232 



INDEX 



mitted to Senate, 1, 4; 
treaties of Fort Harmar with, 
11-16; advice and consent to 
treaties with to be given in 
same form as to foreign 
treaties, 12-16; other treaties 
with during Washington's ad- 
ministrations, 21-39; impor- 
tance of treaties witli in 
development of treaty-mak- 
ing process, 103; See also, 
Creek Indians, Cherokee 
Indians, Six Nations. 

Ingersoll, Jared, 134. 

Instructions to Minister, obliga- 
tion to ratify treaty conclu- 
ded in accordance with, 7-10, 
32-34; advice of Senate asked 
as to, prior to negotiation of 
Creek treaty, and given, 22- 
23, 27-28; to General Put- 
nam. Senate not consulted 
concerning, 35; to Carmichael 
and Short, 56; to Pinckney, 
57; to Jay not submitted to 
Senate, 70-51; drafted, 72- 
73; to Adams upon treaty of 
1799 with Prussia called for 
bv Senate, and submitted; to 
Ministers to France 1799, 
115-116; to Ministers to 
France submitted to Senate, 
118; to Monroe for amend- 
ment of King-Hawkesbury 
convention, 148; to Lear de- 
manded by Senate, 159-161 ; 
to Jonathan Russell, 211. 

Interpretation, of treaty with 
France, Senate called upon to 
assist in, 101-102. 

Izard, Ralph, committee, 46, 
101. 



dispute, 60 ; Chief Justice, de- 
cided that he should be 
envoy to England, 66-67; 
decides to accept, 67; confir- 
mation opposed, 69-71; con- 
firmed, 71. The Corre- 
spondence and Public Papers 
of John Jay, 68, 74. 

Jay Treaty. 58-94; placed iq. 
hands of President, 74; 
amended, 75-83; Senate con- 
sents to ratification, 82-83; 
ratified by England, 86-87; 
proclaimed, 88; influence of 
upon development to treaty- 
making powers of Senate, 
summary, 91-94 ; article ex- 
planatory of, 107. 

Jay-Gardoqui treaty, 53. 

Jefferson, Thomas, and con- 
sular convention of 1788 with 
France, 4, 8; messages on 
Mediterranean commerce, 41- 
43 ; opposes independence 
from House, 47; report, 50; 
believed that Senate should 
be consulted, 55 ; his in- 
structions to Carmichael arid 
Short, 56 ; commercial re- 
port, 62; considered as possi- 
ble special envo.y to England, 
66; criticises French treaty of 
1800, 118; and e.xchange of 
ratifications of French treaty, 
1799, 123; Senate and treaties 
of, 130-168; and Louisiana 
Purchase, 136-145; The Writ- 
ings of Thomas Jefferson 
(Definitive edition), 41, 46, 
47, 85, 113, 118; (Ford edi- 
tion), 140. 

Johnson, Samuel, committee, 
59. 



Jackson, Francis James, Min- 
ister from Great Britain, 182. 

Jackson, James, committee, 124, 
131, 134. 

Jay, John, Secretary for For- 
eign Affairs, and consular 
convention with France, 1788, 
4-9 ; suggestion for settlement 
of St. Croix River boundarv 



King, C. R., Life and Corre- 
spondence of Rufus King, 64, 
65, 66. 67, 70, 71, 72, 76, 119, 
120, 129, 147, 161. 

King. Rufus, on Senate com- 
mittee, 41, 44, 46,52, 101, 174, 
190; one of group responsible 
for Jay mission, 63-73; and 
ratification of Jay treaty, 76; 



INDEX 



233 



and King-Hawkesbury con- 
vention, 145-156; member 
committee on Foreign Rela- 
tions, 1S15-1823, 194 n.; mo- 
tion by, 197; resolution, 203- 
207. 

King-Hawkesburv Convention, 
145-156. 

Knox. General Henry, lays 
Indian treaties before Senate, 
1 ; report of concerning con- 
clusion of Fort Harmar 
treaties with Indian tribes, 
12, 13, 14; delivered message 
from President to Senate, 14 ; 
first Secretary of War under 
new government, 14. 

Lacock, Abner, committee, 193; 
committee on foreign rela- 
tions three years, 194 

Langdon., John chairman com- 
mittee on Meditterranean 
trade and Algerine captives, 
41, 42-43; member committee, 
44, 52, 55, 174. 

Laurence, John, committee, 177. 

Law, international, rule of that 
principle bound to ratify 
concluded by plenipotentiary 
acting in accordance with his 
instructions, 7, 9-10. 

Leib, Michael, committee, 182. 

Lear, Tobias, and treatv with 
Tripoli, 1805, 157-159, 162. 

Livingston, Edward, 134. 

Livingston, Robert R., minister 
to France, 137. 

Lloyd, James, committee, 185. 

Lodge, Senator H. C, opinion 
of as to proper role of Senate 
in treaty-making during 
period of negotiation, 17-18; 
The Treaty-Making Powers 
of the Senate, 17, 156; Life 
and Letters of George Cabot, 
64; Oliver Ellsworth, 64. 

Logan, George, committee, 124. 

Logan Act, alleged violation of 
by five New York la\yyers in 
connection with Spanish con- 
vention of 1802, 133-135. 

Louisiana, Purchase of, 136-145. 



Lyman, Theodore, The Diplo- 
macy of the United States, 
109, 113, 115, 157, 160, 225. 

McConachie, L. G., Congres- 
sional Committees, 170. 

McKean, J. B., 134. 

McLaughlin, A. C, Western 
Posts and British Debts, 61. 

McMaster, J. B., History of the 
People of the United States, 
58, 74, 84, 87, 90, 115, 130, 
135, 137, 157. 

Maclay, William, The Journal 
of William Maclay (ed. 

. 1890), 1. 23, 27. 

Mason, Nathaniel, committee, 
193, 194n. 

Madison, James, resolutions 
proposing retaliation, 62 ; 
opinion of upon simultaneous 
submission of treaty to Sen- 
ate and House, 139; The 
Writings of James Madison 
(Hunt edition), 74, 

Marshall, Humphrey, 80. 

Mason, Stevens T., violates 
order of secrecy imposed by 
Senate, 90-91. 

Mediterranean, American trade 
in, 41-42; British blamed for 
depredations upon, 61 ; treaty 
of 1797 with Tunis to protect, 
and regulate, 108-112, 172. 

"Mediterranean Fund," con- 
nection of with ratification of 
treatv of 1805 with Tripoli, 
158, 165-167. 

Meriy, Anthony, 151. 

Milledge, John, committee 
180. 

Mississippi River, right to 
navigate sought from Spain, 
53-57. 

Mitchell, S. L., committee 
memberships, 180; upholds 
Senate's prerogatives as coun- 
cil of President, 202. 

Monroe. James, minister to 
France, 137; and attempts to 
secure British ratification of 
King-Hawkesbury conven- 
tion, 148-153; and treaty of 



234 



INDEX 



1816, with Sweden and Nor- 
way, 209-215; Writings of 
James Monroe, 149, 150 

Moore, J. B., Digest of Interna- 
tional Law, 2, 6, 9, 58, 115, 
118, 130, 137, 154, 182, 217. 

Morocco, treaty of 1787 with, 
41-43, 52-53, 

Morris, Gouverneur, mission to 

- England, 59-61 ; committee, 

118, 174; Diary and Letters 

of Gouverneur Morris, 120, 

122. 127. 

Morris, Robert, committee, 41, 
44, 46, 48, 55, 100; associated 
with group responsible for 
Jay mission, 63-73. 

Most Favored Nation Clause, 
treaty of 1797 with Tunis 
amended by Senate to avoid 
conflict with, in other treaties, 
109-112. 

Murrav, W. V., appointed min- 
ister to France, 1799, 115. 

Negotiation of Treaties, Senate 
requests and receives infor- 
mation concerning negotia- 
tion of French consular con- 
vention of 1788, 5, 6. 7; 
proper role of Senate in, as 
understood in 1789, 16-29; 
Senate participation in illus- 
trated by French treatj' of 
1800, 124-126; Senate has 
authority to suggest, 142-145; 
Senate and, 199-208. 

Nichols, W. C, committee, 119, 
147; warns Jefferson, 139. 

Nomination, presidential right 
of under constitution, 17; of 
Jay to be special envoy to 
England, 68-71 ; of commis- 
sioners to negotiate treaty 
with Creek Indians, 97; con- 
trol of Senate over as a 
means of influencing treatv- 
making. 113-114, 137, 188, 196. 

Ocnuilgec River, 95. 
Oconee River, 95. 
Ogg, F. A., The Opening of the 
Mississippi, 137. 



Patterson, William, committee,. 
59. 

Philadelphia, frigate, 158. 

Phillips, U. B., Georgia and 
States Rights, 21, 95, 96. 

Pickering, Timothy, Secretary 
of State, gives instructions to 
Ministers to France, 115-116; 
declares treaty with France. 
1800, is reprobated, 119. 

Pinckney, Charles, negotiates 
convention of 1802 with 
Spain. 130-132. 

Pinckney, Thomas, Minister tO' 
England, nominated as en- 
vov extraordinary to Spain, 
56' 

Pope, John, committee, 182, 
183, 184, 185. 

Power, treaty-making, Consti- 
tutional grant of, 2, 16-17; 
exercised as necessity de- 
manded in crisis, 63; de- 
velopment of as influenced by 
Jay treaty, 91-94; guarded 
well by Senate. 135; under 
Constitution explained to- 
Swedi.sh government, 211-215. 

Precedents, importance of 
those set during Washing- 
ton's administration, 2-3; as 
to consultation of Senate 
prior to negotiation, Jay 
treaty, 79. 

President of United States, pro- 
cedure when he shall com- 
municate with Senate in writ- 
ing, or personally, 20; rela- 
tions of to Senate and House 
in concluding treaties re- 
cjuiring money, 44-51 ; Senate 
committee confers with, 46; 
relati\'e powers of Senate 
and, in negotiation of trea- 
ties, 16-18; personal consul- 
tation with Senate, 18-26; 
keeps House and Senate 
equally informed of nego- 
tiations, 51; relations of. with 
Senate and House in Anglo- 
AnuM-ican negotiations, 1790- 
1796. 58-94; effect of Jay 
treaty upon obligation ta 



INDEX 



235 



consult Senate prior to nego- 
tiation of treaties, 77-80; 
proper relations with Senate 
during negotiation, 198-208. 

Printed, treaties usually ordered 
to be by 1797, 107-108. 

Procedure, rules for upon trea- 
ties, adoption by Senate of 
first standing rules on, 126- 
129; of Senate for treaty 
business, 1814, 197-199. 

Prussia, treaty of 1799 with, 
112-114. 

Putnam, General Israel, con- 
cluded treaty with Wabash 
and Illinois Indians, 1793. 



Handolph, Edmund, Secretary 
of State, and Jay treaty, 68, 
72-73, 84-85. 

Ratification, obligation of Sen- 
ate to consent to ratification 
of treaties concluded by 
President, 6-10; of French 
Consular Convention of 1788, 
4-10; of treaties with Indian 
tribes to be in same form as 
that of foreign treaties, 12- 
16; of treaty with Six Na- 
tions refused by Senate, 15- 
16; of Jay treaty with 
amendment, 82-83 ; condi- 
tional, does not require re- 
submission of amendments to 
Senate, 83-86; of amended 
Jay treaty by Great Britain 
without protest, 86-87; of 
French treaty of 1800 ad- 
vised, with amendments, 119- 
121 ; in unusual form referred 
to Senate, 123-124 ; of treaties 
with amendments declared by 
Great Britain to be contrary 
to law of nations and not to 
be tolerated, 149-153; of trea- 
ties with amendments, an in- 
novation necessary under 
American system, 154-156; of 
treaty of 1816 with Sweden 
and Norway, with amend- 
ments, 208-215. 

Rawle, William, 134. 



Read, Jacob, 80; committee, 
108, 112. 

Reconsideration of questions 
concerning treaties. Senate 
adopts rule concerning, 129; 
of decision to consent to 
ratification of Spanish treaty, 
1802, 131. 

Reeves, J. S., American Diplo- 
macy Under Tyler and Polk, 
145. 

Rejection, by Senate of treaty 
with Wabash and Illinois 
Indians, 36; of three articles 
of convention of 1816 with 
Sweden and Norway, 209. 

Reservation, to ratification of 
Creek treaty of 1796, 99. 

Richardson, J. D., A Compila- 
tion of the Messages and 
Papers oj the Presidents, 
1789-1902, 21, 41, 52, 60, 74. 
96, 136, 137, 176, 177, 190, 223. 

Robinson, Jonathan, committee, 
185. 

Rush. Richard, Secretary of 
State, and treaty of 1816 with 
Sweden and Norway, 209- 
215. 

Russell, Jonathan, opposition 
to as minister to Sweden, 
187; and commercial conven- 
tion of 1816 with Sweden, 198. 

St. Croix River Boundary, 60, 
107. 

San Lorenzo el Real, treaty of. 
53-57. 

Schouler, James, History oj the 
United States, 121. 157. 

Secrecy of Senate, Washington 
held low opinion of, 46 ; upon 
Jay treaty violated, 88-91 ; in- 
junction of, 198. 

Sedgwick, Theodore, commit- 
tee, 108. 

Sherman, Roger, committee, 
33. 

Short, William, commissioner 
to negotiate treaty with 
Spain, 54-55. 

Session, executive. Senate met 
in, 42; Secret, 184. 



236 



INDEX 



Six Nations, treaty with, 12-16, 

Smith, Israel, opposes advice to 
President, 200-201. 

Smith, John, upholds Senate's 
power to advise negotiation 
of treaties, 203. 

Smith, Samuel, committee, 159, 
160, 163, 180, 184, 200; and 
treatv of 1805 with Tripoli, 
159-167; resolution by, 197. 

Spain, treaty of 1795 with, 53- 
57; convention of 1802 with, 
130-136. 

Special Session, of Senate to 
consider Jay treaty, 74. 

State, Secretary of, report on 
capture of American seamen 
by Algerines, 41 ; on com- 
merce in Mediterranean, 41 ; 
on Algerine prisoners, 42-51, 
passim; personal appearances 
in Senate, 104. 

Strong, Senator Caleb, vote, 36 ; 
on Senate committee, 41, 44, 
59, 101, 174; one of group 
responsible for Jay mission, 
63-73. 

Sumter, Thomas, and treaty of 
1805 with Tripoli, 163-167; 
committee, 180-184. 

Sweden, opposition to nomina- 
tion of J. Q. Adams as 
minister to, 112; opposition 
to 'sending a minister to, 187 ; 
commercial convention of 
1816 with, 198-199, and Nor- 
way, ratification of treatv of 
1816 with, 208-215. 



Taylor, John, committee, 185, 
190. 

Tazewell, Henry, opposed con- 
firmation of J. Q. Adams as 
minister to Sweden, 113-114. 

Tracv, Uriah, committee, 124, 
159, 160, 164, 165, 177; resolu- 
tion concerning treatv of 1805 
with Tripoli, 159-167. 

Trcscott, W. H., The DIpJo- 
matic History of the Adinin- 
islmtion of Washington and 
Adams. 58, 70, 86, 225. 



Tripoli, proposed treaty with, 

45; treatv of 1796 with, 107; 

treaty of 1805 with, 156-168. 
Tunis, proposed treaty with, 

45; treatv of 1798 with, 108- 

112. 

Varnum, J. B., committee, 185. 
Vertitude, French privateer, 177. 

War, Secretary of, appears be- 
fore Senate in connection 
with Indian treaties. 14; 
appearance of in Senate in- 
dicates personal relations be- 
tween President and Senate,. 
104. 

Washington, George, relative 
powers of President and Sen- 
ate in treaty-making during^ 
administration of, 1-2; opin- 
ion that treaties with Indian 
tribes should be ratified in 
form, 14-15; opinion upon 
nominations and treaties, 18- 
20; seeks advice of Senate 
personally, 21-26; during 
negotiation of Creek treaty, 
27-28; seeks advice of Senate 
prior to negotiation of Chero- 
kee treaty, 30-31 ; suggests 
ratification of treaty with 
amendment. 35 ; and treaty of 
Greenville, 37-38; and treaty 
with Algiers, 1795, 40-51, pas- 
sim; has no confidence in 
secrecy of Senate, 46; asks 
Senate advice, 1790, 59; and 
Jay mission, 58-74; early 
attitude towards Senate as 
council of advice in foreign 
affairs, 59 ; face set against 
war with England, 62; con- 
sults Cabinet as to re-sub- 
mission of Jay treaty, 83-86; 
sununary of treaty-making 
during administrations of, 
103-106; The Writings of 
George Waxhington (Ford 
cd.), 18 19, 20, 83, 84. 

Watson, James, conmiittee, 112. 

West Florida, boundary be- 



INDEX 237 

tween United States and, 53, mittee, 159, 185; opposition 

184. to advice to President, 201. 

West India Trade, 64-65, 75-76, Wright, Robert, 146; com- 

83. mittee, 147, 160, 165. 

Wolcott, Oliver, 90. 

Worthington, Thomas, com- Yazoo land sale, 96. 



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Just Published — A History of High Importance Revealing 
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THE WAR WITH MEXICO— 1846-1848 

By JUSTIN H. SMITH 

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Author of "Annexation of Texas," etc. 

The story of our war with Mexico is told here for the first time. 
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CHAPTER CONTENTS 

Volume I 

Mexico and Mexicans 

The Political Education of Mexico 

The Relations Between the United 

States and Mexico, 1825-1843 and 

1843-1846 
The Mexican Attitude on the Eve of 

War 
The American Attitude on the Eve 

of War 
The Preliminaries of the Conflict 
Palo Alto and Resaca de Guerrero 
The United States Meets the Crisis 
The Chosen Leaders Advance 
Taylor Sets Out for Saltillo 
Monterey, Saltillo, Parras, and Tam- 

pico, Santa Fe 
Chihuahua, The California Question 
The Conquest of California 
The Genesis of Two Campaigns 
Santa Anna Prepares to Strike 
Suena Vista 



CHAPTER CONTENTS 
Volume n 
Behind the Scenes at Mexico 
Vera Cruz 
Cerro Gordo 
Puebla 

On to the Capital 
Contreras and Churubusco 
Negotiations 
Molieo del Riz 
Chapultepec and Mexico 
Final Military Operations 
The Naval Operations 
The Americans as Conquerers 
Peace 

The Finances of the War 
The War in American Politics 
The Foreign Relations of the War 
Conclusion 

INDEX 

Each volume contains maps and 
plans, conspectus of events, pronunci- 
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dix with lists of sources. 



THE WAR WITH MEXICO, By JUSTIN H. SMITH 

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A Brilliant Book by the Author of " The Education of 
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THE DEGRADATION OF THE 
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of averages leads ever to a lower level. The perfect plebiscite, 
the democratic ideal, is the synonym not of perfect truth but of 
disaster and confusion." 

These essays will be welcomed by historians, scientists and alt 
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